Bledsoe v. Barber
| Citation | 220 S.W. 369 |
| Decision Date | 31 March 1920 |
| Docket Number | (No. 6371.) |
| Parties | BLEDSOE v. BARBER. |
| Court | Texas Court of Appeals |
Appeal from Travis County Court; D. J. Pickle, Judge.
Suit by Isaac Bledsoe against Mrs. Ora Barber and I. N. Barber, her husband. From judgment sustaining defendant husband's plea of privilege, plaintiff appeals. Affirmed.
White, Cartledge & Wilcox, of Austin, for appellant.
Isaac Bledsoe sued Mrs. Ora Barber and her husband, I. N. Barber, residents of Matagorda county, upon a promissory note executed by Mrs. Barber, payable in Travis county, and for foreclosure of a chattel mortgage lien upon a piano. Plaintiff alleged that Mrs. Barber executed the note for herself and as the agent and attorney in fact for her husband, and that she was duly authorized by her husband to execute the same. He also alleged, in the alternative, that if the note was not executed as agent for Mr. Barber, then that Mrs. Barber executed the same for the purchase money of the piano described in the mortgage, which was purchased by Mrs. Bledsoe for the benefit of her separate estate, and that she was personally liable therefor.
I. N. Barber filed a plea of privilege in statutory form, with the addition of a special denial that he had ever promised in writing to pay the debt sued on to plaintiff in Travis county or in any other county. The plaintiff filed a controverting affidavit containing averments of the material allegations contained in his original petition, and the further allegation that said I. N. Barber is the husband of Mrs. Ora Barber, and therefore a necessary party to the suit, and that by reason of the fact that the note sued on was payable in Travis county the venue of the suit was properly laid in said county as to both defendants. The plaintiff introduced in evidence the note sued on, signed by Mrs. Ora Barber, and payable at Austin, Travis county, Tex.; also the original petition. No other evidence was introduced. The court sustained the plea of privilege.
Under article 1903, chapter 176, Acts of the Thirty-Fifth Legislature (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), the plea of privilege filed by Barber constituted prima facie proof of his right to change of venue. Brooks v. Wichita Mill Co., 211 S. W. 288; Witt & Sons v. Stith, 212 S. W. 673. Upon the filing thereof it devolved upon plaintiff to file a controverting affidavit and introduce evidence showing his right to sue Barber in Travis county. As Barber's residence was admittedly in Matagorda county, it became necessary to show the existence of one of the exceptions to the statute of venue. In this case no cause of action is alleged against Mrs. Barber. It is not alleged that the contract sued on was for necessaries, and while it is alleged that it was for the benefit of her separate estate, the petition discloses facts showing that such conclusion is erroneous. How can the purchase of a piano be an expense for the benefit of her separate estate? To so hold would simply mean that a married woman, under the law as it existed when Mrs. Barber signed the note, could make a valid contract for the purchase of any property, just so she intended the property to become a part of her separate estate. In support of the conclusion that the petition states no cause of action against her, we cite the following cases: Covington v. Burleson, 28 Tex. 368; Shannon v. Childers, 202 S. W. 1030; Ferguson v. Bank (Sup.) 206 S. W. 923; Mills v. Bank, 208 S. W. 698; Shaw v. Proctor, 193 S. W. 1104; First State Bank v. Tinkham, 195 S. W. 880; Speers, Law of Marital Rights, §§ 157 and 177. As the petition discloses that the instrument relied on to create a contract in writing on her part constitutes no obligation, it is evident that it cannot be held sufficient to confer venue, under subdivision 5 of the statute of venue. The entire contract is one which imposes no obligation of any kind upon her, and therefore cannot serve the purpose of an obligation to pay in Travis county, or a contract fixing venue of a suit in Travis county.
Appellant relies upon the case of Hall v. Decherd, 62 Tex. Civ. App. 426, 131 S. W. 1133, in which it was held that,...
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