Higgins v. Frederick

Morrill, C. J. Frederick sued Higgins upon a promise to pay a debt which one Schley er owed to Frederick, secured by a mortgage on a certain tract of land in Bexar comity. Suit was brought in Bexar county, the petition showing the residence of Higgins to be in Bastrop county. IIiggins excepted to the jurisdiction of the Bexar District Court, and also pleaded the second clause of the statute of frauds, (Art. 8875), alleging that this was a suit to cause him to pay the debt of another, and that it was not based upon a written instrument. The court overruled the exceptions, and the ruling of the court is arraigned as error. To the general rule that no person shall be sued out of the county of his domicile there are eleven exceptions, and the plaintiff relied upon the tenth, which provides that. “ in cases for the foreclosure of mortgages or liens, suit may be instituted in the county where the mortgaged property may be.” The plaintiff insists that because Schley er had mortgaged certain [285] land in Bexar county to secure tlie payment of the notes, and because Higgins had promised to pay the notes, therefore the suit is to forclose the mortgage, and that the suit is properly brought in the county where the mortgaged land lies, and especially, as in this case, where Higgins owns the land subject to the mortgage. There is no pretense that Iliggins, or any other parties, except Schleyer, made the mortgage. And as the statute provides in the tenth exception for those cases only where “the foreclosure of mortgages or liens is the specific object of the suit,” it would seem that the foreclosure of the mortgage must be the principal cansé of the action, and not a mere incident to another action. But the only mortgage that is-noticed in the petition was between Schleyer as mortgagor and. Frederick as mortgagee, and Higgins was no party to it. The proper parties to a suit for the foreclosure of this mortgage were the parties to it. We, therefore, conclude that this can not be regarded as a suit to foreclose the mortgage, and that the exception of plaintiff, if properly pleaded, ought to be sustained. The plaintiff, however, excepts to the plea of abatement because it is not sustained by affidavit. The statute provides that “ no plea in abatement, except a plea to the jurisdiction of the court, or where the truth of the plea appears of record, shall he received or admitted, unless the party pleading the same, or some other person for him, shall make affidavit to the truth thereof.” In this case the petition discloses the fact that Higgins, the defendant, resides in Bastrop county, and admits the truth of the plea hi abatement. It was in his power to waive this statutory provision of being sued in the county of his residence, and it ivas also in his power to insist upon it, and when insisted upon, the court erred in not sustaining his exception. As the judgment must be reversed on the first assigned error, which will also amount to a dismissal, unless the plaintiff can so amend his petition as to make the jurisdiction [286] attach in the case, we deem it unnecessary to notice the other errors assigned. And especially as we can add nothing to what is so fully treated and discussed in the elementary works on the statute of frauds. Reversed and remanded.