Bingham v. Emanuel

• Decision Date: 11 December 1920
• Docket Number: (No. 9414.)
• Citation: 228 S.W. 1015
• Parties: BINGHAM et al. v. EMANUEL.
• Court: Texas Court of Appeals

228 S.W. 1015

BINGHAM et al. v. EMANUEL.

(No. 9414.)

Court of Civil Appeals of Texas. Fort Worth.

December 11, 1920.

Appeal from Wichita County Court; J. P. Jones, Judge.

Suit by F. L. Emanuel against C. S. Bingham and others. From an order overruling a plea of privilege, the named defendant appeals. Reversed and rendered, with instructions.

Smoot & Smoot, of Wichita Falls, for appellant.

Carlton & Putty, of Wichita Falls, for appellee.

DUNKLIN, J.

F. L. Emanuel instituted this suit in the county court of Wichita county against C. S. Bingham and the First National Bank of Iowa Park, Tex., to recover on a check given by Bingham in favor of the plaintiff, drawn on the Dallam County Bank of Texline in the sum of $500. The defendant Bingham filed a plea of privilege to be sued in Dallam county, where he resided, and he has appealed from an order of the court overruling that plea.

The plea was in proper statutory form, duly verified, containing the allegation that Bingham's place of residence was in Dallam county, Tex., when the suit was instituted, when he was served with citation, and when he filed his plea and that none of the statutory exceptions to exclusive venues of the suit in the county of his residence existed, all in accordance with the requirements of article 1903, V. S. Tex. Civ. Statutes, as amended by the Act of the 35th Legislature, passed in 1917, as shown by the Acts of that Legislature on page 388 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903).

The plaintiff filed a duly verified controverting plea in reply to Bingham's plea of privilege, in which the allegations in the defendant's plea were denied, and in which plaintiff alleged that the facts upon which he relied to confer venue of the cause in the county of Wichita were that the defendant Bingham resided in Wichita county, and that the defendant First National Bank of Iowa Park, Tex., a banking corporation, had its principal office and place of business in Wichita county, where its officers resided, as alleged in plaintiff's original petition.

Upon a hearing of the plea of privilege, defendant Bingham introduced in evidence plaintiff's original petition, the citation served upon him in Dallam county, and his plea of privilege, as well as the defendant's controverting plea. He also introduced his own testimony and that of N. A. Copes, which was uncontroverted by any other proof, and was clearly and specifically to the effect that Bingham never resided in Wichita county at any time, and was a resident citizen of Dallam county at the time the suit was filed, and at the time of service of citation upon him, and that he still resides in that county. It was alleged in plaintiff's petition, which, as noted, was introduced in evidence by the defendant, that the defendant—

"the First National Bank of Iowa Park is a banking corporation, doing business in Iowa Park, in Wichita county, Texas, with Tom Corridon as cashier, who resides in Wichita county, Texas."

Under subdivision 4 of article 1830, V. S. Tex. Civ. Statutes, providing that, where there are two or more defendants residing in different counties, suit may be instituted against all in the county of the residence of any one of them, the fact that the bank was made a codefendant with Bingham was sufficient to defeat the plea of privilege, if the bank was properly joined with Bingham as a codefendant, and if a cause of action was alleged against it, as well as against Bingham. However, we have reached the conclusion that no cause of action was alleged against the bank and that under such circumstances the court erred in overruling the plea of privilege. The allegations in plaintiff's petition, showing the cause of action alleged against both defendants, are as follows:

"(1) That heretofore, to wit, on the 23d day of April, 1919, the defendant C. S. Bingham, for a valuable consideration, made and executed and delivered to this plaintiff his certain check drawn on Dallam...