Yett v. Green

KEY, Associate Justice. Appellant instituted this suit in the County Court of Coke County, seeking to recover $400 alleged to be due upon an accepted draft. Appellee, the defendant in the court below, filed a plea in abatement, charging that the venue was improperly laid in Coke County, and showing that he was not a resident thereof, but resided in Coleman County. The plaintiff joined issue on the plea, and after hearing testimony supporting it, the court sustained the plea and dismissed the plaintiff’s suit. The instrument sued on was addressed to the defendant at Robert Lee, Texas, care of bank at Robert Lee, but it was not in terms made payable at Robert Lee or in Coke County. It is claimed that the plea of privilege does not affirmatively show that the defendant had not contracted in writing to pay the debt in Coke County. This contention is overruled. The plea states “that this defendant has not contracted in writing to perform any obligation which is the basis of or in any way connected with this suit in any particular county.” The language quoted negatives the fact that the defendant had promised in writing to pay the debt in Coke County. This ruling disposes of the first assignment of error. The draft was not payable at Robert Lee, which is the county seat of Coke County, as asserted by the second assignment of error. The plaintiff sued out a writ of garnishment, which was served on J. W. Hill and B. F. Lee, and after the garnishees had answered, showing that they were indebted to the defendant, the latter filed a replevy bond, payable to the plaintiff, and appellant contends that by so doing appellee entered an appearance and waived his privilege to • be sued elsewhere. No authority is cited which supports this contention, and it is not believed to be sound. The replevy bond was in no sense a pleading. It was executed for the purpose of releasing funds tied up by the writ of garnishment; and its execution ought not to be construed as [186] waiving the. right to urge any plea which otherwise might have been available. (Wells v. Iron Works, 3 Civ. Cases (Willson), sec. 297.) These views result in overruling the third and last assignment of error, and an affirmance of the judgment. Affirmed.