Johnston v. Price

Opinion by Will-son, J. § 7 5 6. Venue; want of jurisdiction of person may be presented by special exception, when; case stated. Appellee sued appellant in the county court of Callahan [663] to recover damages for an alleged breach of a written contract, alleging in the petition that appellant resided in Brown county, but that the contract, by its tertiis, was to be wholly performed by appellant in Callahan county. The petition sets out the written contract in hcec verba, and it does not show by its terms, as alleged, that it was to be performed in Callahan county. There is no stipulation whatever in the contract as to the place of its performance. Appellant excepted specially to the petition, because it showed upon its face that the county court of Callahan county did not have jurisdiction of his person, which exception was overruled, and appellee recovered judgment for damages claimed. Held: It is manifest from the petition that the special exception was well taken. [B. S. art. 1198.] The want of jurisdiction over the defendant’s person being thus apparent of record, could be reached by special demurrer, and was not required to be presented by a verified plea. [R. S. art. 1265; Bigham v. Talbot, 51 Tex. 450.] The court erred in overruling appellant’s special exception to the petition. June 13, 1885. Beversed and remanded.