Cohen v. Munson

• Decision Date: 17 April 1883
• Docket Number: Case No. 4758.
• Citation: 59 Tex. 236
• Parties: ROBERT COHEN v. J. T. MUNSON, GUARDIAN.
• Court: Texas Supreme Court

59 Tex. 236

ROBERT COHEN

v.J. T. MUNSON, GUARDIAN.

Case No. 4758.

Supreme Court of Texas.

Apr. 17, 1883.

ERROR from Grayson. Tried below before the Hon. Joseph Bledsoe.

James K. P. Gillespie, for plaintiff in error.

WILLIE, CHIEF JUSTICE.

This suit was brought in the district court of Grayson county, against Robert Cohen alone, as one of the sureties upon the bond of M. J. Massie, given for the faithful performance of his duties as administrator of the estate of John William Bradford, deceased. The object of the suit was to recover the value of certain property alleged to have been received by Massie as such administrator and appropriated to his own use, to which property the ward of appellee was entitled as only heir of the deceased. Cohen, being at the date of the commencement of the suit a resident of Harris county, pleaded his personal privilege of being sued in the county of his residence, to which plea a demurrer by the plaintiff was sustained. The district court of Grayson county retained jurisdiction of the cause and proceeded with the trial of it, which ended in a judgment for the plaintiff below, and from this judgment Cohen has appealed to this court, assigning among other errors the action of the court in striking out his plea of personal privilege.

This assignment of error is the only one we propose to consider.

The record does not disclose the grounds upon which the plea was held bad, but the supposition is that the court construed the administrator's bond to be a contract for the performance of an obligation in Grayson county, and hence that the case was within the fifth exception to art. 1198 of the Revised Statutes. No other exception included in that article could, under the circumstances of the case, have been made applicable to it, nor do we think that it can be embraced within this exception.

The contract of the sureties was to pay money to a certain amount in case their principal did not well and truly perform his duties as administrator, but not to pay at any particular place; so there was no express contract to perform the obligation in Grayson county.

Neither can such contract be implied from the terms of the instrument. The mere fact that the administration was opened and carried on in that county was not sufficient to compel the sureties to answer there for the defaults of their principal committed in the course of such administration. To perform the duties of administrator, and to pay in case of failure...