Dougherty & Lyford v. Dilworth

• Decision Date: 11 May 1904
• Citation: 81 S.W. 573
• Parties: DOUGHERTY & LYFORD v. DILWORTH et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 573

DOUGHERTY & LYFORD v. DILWORTH et al.^*

Court of Civil Appeals of Texas.

May 11, 1904.

Appeal from Gonzales County Court; W. W. Glass, Judge.

Action by G. N. Dilworth against Dougherty & Lyford, J. H. Botts, and others. From a judgment for plaintiff against Botts, and in favor of Botts against Dougherty & Lyford, the latter appeal. Reversed.

W. A. H. Miller, for appellants. Abernethy & Jones and T. H. Spooner, for appellee.

NEILL, J.

This suit was brought by G. N. Dilworth against Ed Roebuck, as the drawer, J. H. Botts as the payor, and Dougherty & Lyford, a firm composed of T. E. Dougherty and C. A. Lyford, as drawees, on a sight draft drawn on the 15th day of April 1902, by Roebuck on Dougherty & Lyford, in favor of J. H. Botts, for the sum of $908.95, and transferred by indorsement to G. N. Dilworth. It was alleged by the plaintiff that the draft was presented to the drawees for acceptance and payment at their office in San Antonio, Tex., and that they refused to accept the same or to pay any part thereof, except the sum of $560.86, which was paid by them on the 26th day of April 1902, and duly credited on the draft. J. H. Botts answered, admitting the truth of the allegations in plaintiff's petition, and asked that, in the event judgment should be rendered against him, he have judgment over against Roebuck and Dougherty & Lyford for the amount thereof. Dougherty & Lyford answered by a plea of privilege, containing the necessary allegations, claiming the right to be sued in Bexar county, in which they reside and are domiciled. The case was tried before a jury, and a judgment rendered on their verdict in favor of plaintiff against J. H. Botts for $348.09, with interest thereon from the 16th of April, 1892, at the rate of 6 per cent. per annum, and in favor of J. H. Botts against Ed Roebuck and Dougherty & Lyford for the same amount. Dougherty & Lyford have alone appealed.

The allegations in appellants' plea of privilege were established by the undisputed evidence. In accordance with the decision of the Court of Civil Appeals of the Third District in Gamer v. Thompson (Tex. Civ. App.) 79 S. W. 1083, we hold that an action on a draft cannot be maintained against the non-accepting drawees in a county other than their domicile, against a plea in abatement asserting their privilege of being sued in the county of their residence. Therefore the judgment against appellants is reversed, and, as to them, the case is dismissed.

Reversed and...