Noble v. Broad

RICE, J. While living in Coleman county, J. R. Hager became indebted to appellee in the sum of $125, and on December 3, 1909, gave him Ms note therefor, payable on the 1st of March, 1911, at Coleman, Tex., bearing 10 per cent, interest and 10 per cent, attorney’s fees, secured by a chattel mortgage on two mares, which was duly filed' and registered in said county. Afterwards he removed from Coleman to Clay county, taking said animals with him, without the knowledge or consent of appellee, and there mortgaged the same to T. B. Noble and H. L. McGregor to secure a debt due them, who, when the same matured, brought suit to enforce collection thereof, with foreclosure of said mortgage lien, and purchased said property at their foreclosure sale, crediting the amount paid therefor on their judgment against Hager. They subsequently sold said property to Leroy Vaughan, who paid value therefor. This suit was brought June 14, 1912, by ap-pellee in justice court precinct No. 1, Coleman county, against Hager on said note, and against all of the other parties above named, praying for judgment for the debt against Hager, and for foreclosure of his mortgage lien as against said other parties. Hager answered; but each of the others filed pleas of personal privilege to be sued in the counties of their residences, to wit, Clay and Wichita. On July 28, 1913, judgment went against Hager on the debt, with foreclosure of the mortgage as prayed for, but in favor of Noble, McGregor, and Vaughan on their pleas of privilege, transferring the case to the justice’s court of precinct No. 4, Clay county. ' An appeal was taken to the county court, where the case was tried before the court, without a jury, and resulted in a judgment on the 30th of October, 1913, in favor of appellee against Hager for his debt and foreclosure of the mortgage lien, and against all of the other parties thereto on their pleas of privilege, and for foreclosure of the mortgage lien, as well as for costs of- suit, from which judgment Noble and McGregor have appealed to this court, urging that the court erred in overruling their pleas of privilege, as well as rendering judgment against them foreclosing said mortgage lien. None of the defendants resided in Coleman county at the time the suit was brought, or process issued, or judgment rendered, nor did any of them have possession of the property in question against which the foreclosure was sought, nor were any of them claiming any interest therein; but it appeared that Leroy Vaughan had, prior thereto, removed the property out of the state. Appellants’ pleas of privilege were in due-form and supported by the facts, showing that neither of them came within any of the exceptions to exclusive venue mentioned in articles 1830 or 230S of the Revised Civil Statutes of 1911, and, in view of this, it is urged that since none of the defendants lived in Coleman county, and appellants were not parties to the note sued on, that they were improperly joined in a suit by the payee against the maker of the note, notwithstanding the fact that no personal judgment was asked against them, but only a foreclosure of the mortgage lien. Article 2308 of the Revised Statutes provides that every suit in the court of a justice of the peace shall be commenced in the county and precinct in which the defendant, or one or more of the several defendants, resides, except in the following cases, and such other cases as are or may be provided by law, etc. Exception 4 provides that suits upon a contract in writing promising performance at any particular place may be brought in the county and precinct in which such contract was to be performed, and this, exception is relied upon by appellee as authorizing the suit against appellants in this instance. In the case of Behrens Drug Co. v. Hamilton & McCarty, 92 Tex. 284, 48 S. W. 5, the-plaintiff brought suit in McLennan county against Hamilton & McCarty, who resided in Comanche county, and against the First National Bank of Comanche. As stated by the court: “The object of the suit was to recover against. Hamilton & McCarty the sum of $1,269.50, with interest, the value of certain merchandise sold to them by the drug company, for which they had agreed in writing to make payment in Mc-Lennan county, and to recover of the First National Bank of Comanche the value of certain book accounts and dioses in action, alleged to have been transferred and assigned to the plaintiff by Hamilton & McCarty to secure their indebtedness to the plaintiff, and after that transfer Hamilton & McCarty had pretended to transfer the same to the First National Bank of Comanche, and said bank had wrongfully seized and converted them to its own use.” The bank having pleaded the privilege to be sued in Comanche, the county of its residence, it was held that it could not be joined in the suit in McLennan county, on the *3 ground that it had not promised payment in said county. Here Hager had promised payment in Coleman county; but the appellants had not, and the case comes within the rule above announced. It is true that said ruling was based upon article 18S0, prescribing venue of suits in district and county courts; but we hold that there is no material difference between it and the justice court act in this particular. We have carefully examined both acts, and. fail to find any basis for ap-pellee’s contention that there is such dissimilarity between the two as to make the ruling in Behrens Drug Co. v. Hamilton & McCarty inapplicable to the facts in the present case. In this connection we cite the recent case of Sublett v. Hurst et al., 164 S. W. 448, and also the cases of Zapp v. Davidson et al., 21 Tex. Civ. App. 566, 54 S. W. 366; Behrens v. Brice et al., 52 Tex. Civ. App. 221, 113 S. W. 782; Johnson v. Lanford et al., 52 Tex. Civ. App. 307, 114 S. W. 693; Breed v. Higginbotham Bros., 141 S. W. 165; St. Louis S. W. Ry. Co. v. McKnight, 99 Tex. 289, 89 S. W. 755; Lindheim v. Muschamp, 72 Ter. 33, 35, 12 S. W. 125; Cohen v. Munson, Guardian, 59 Tex. 236; Fermier v. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 702 — which cases follow the rule laid down in Behrens Drug Co. v. Hamilton & McCarty, supra. Believing that the court erred in rendering 'judgment against appellants, the case is reversed, with instructions to the trial court to transfer same to the justice court, either of precinct No. 1, Wichita county, or to the justice court of precinct No. 4, Clay county, at the option of appellee. Reversed, with instructions.