Bain v. Central Nat. Bank of Waco

PLY. C. J. This is a suit instituted by the appellee against J. L. Bain, Ira Coates, and her husband, R. H. Coates, on a* certain promissory note executed by J. L. Bain to L. E. Bain, who assigned and delivered said note to appellee as collateral security for a debt due by said L. E. Bain to appellee. As security for the note J. L. Bain had executed to Guy S. McFarland, as trustee for the use and benefit of L. E. Bain, a deed of trust on a certain tract of land situated in Karnes county, being 1,3S0 acres, fully described by metes and bounds, which said lien was transferred to appellee, together with the note as aforesaid. The Coateses were made parties as claiming some interest -in the land. The note was made payable in San Antonio, Tex. The Coateses, in addition to their answer to the petition, filed a cross-action against L. E. Bain, setting up facts in regard to the land by which they had been, defrauded out of it by the two Bains, and praying for a cancellation of the deed of trust and for judgment against them for certain sums due by them. L. E. Bain interposed a plea of privilege to the cross-action to be sued in McLennan county, which was heard upon a controverting plea, and denied by the lower court. Prom the order denying the plea of privilege, this appeal has been prosecuted by L. E. Bain. It is provided in article 587, Revised Statutes: “Assignors, indorsers, and other parties not primarily liable upon any of the instruments named in this title, may be jointly sued with their principal obligors, or may be sued alone in the cases provided for in articles 3842 and 1843.” Under the terms of that statute the owner of the note had the right to sue not only the maker of the note, but the indorser or assignor in Bexar county, and his plea of privilege would not avail. Under that law the owner of the note is given, by the statute, authority to sue such indorser jointly with the maker, or alone under the circumstances named in articles 1842 and 1843. But the owner or holder of the note alone is given such authority to sue, and he, in this suit, did not see'fit to exercise his statutory power, and we think that no one else could exercise that privilege. As said by this court in Scott v. Pitch, 97 S. W. 841: “The privilege of suing a nonresident, who is jointly liable with á resident, is one granted to plaintiffs, but the right to sue a person outside of his county is not given to a defendant who may desire to obtain a judgment 'over against the nonresident. In making appellant a party to the suit Pitch had assumed the role of plaintiff, and no authority is given to a plaintiff to sue a party in the justice’s court outside of his own precinct and county except when he is joined with a resident party. Pitch was seeking to inject the question of agency into the case about which the plaintiffs in the suit were not concerned, but it may be con-' ceded that appellant was a proper party, and still that would not justify the denial to him of the privilege of being sued in the precinct and county of his domicile. It is not a question of proper parties, but of the right of a citizen to be sued in the precinct and county of his residence.” So in this case the plaintiff had not sued L. E. Bain, the indorser, and defendants' sought to drag another issue between them and Bain into the suit in which plaintiff had no interest, and to force Bain out of his county to answer the cross-action. Railway v. McKnight, 99 Tex. 289, 89 S. W. 755; Williams & Co. v. Turner (Tex. Civ. App.) 248 S. W. 825. Our former opinion will be withdrawn, our former judgment set aside, and the judgment of the lower court reversed, and the plea of privilege of L. E. Bain will be granted.