First Nat. Bank of Electra v. Guyer, 3556.

• Decision Date: 25 February 1931
• Docket Number: No. 3556.,3556.
• Citation: 40 S.W.2d 212
• Parties: FIRST NAT. BANK OF ELECTRA et al. v. GUYER et ux.
• Court: Texas Court of Appeals

40 S.W.2d 212

FIRST NAT. BANK OF ELECTRA et al. v. GUYER et ux.

No. 3556.

Court of Civil Appeals of Texas. Amarillo.

February 25, 1931.

Rehearing Denied May 13, 1931.

Appeal from District Court, Wilbarger County; W. N. Stokes, Judge.

Action by Jesse C. Guyer and wife against the First National Bank of Electra and another. From a judgment overruling the pleas of privilege of defendants, defendants appeal.

Affirmed.

Killough & Dotson, of Vernon, and C. P. Engelking, of Electra, for appellants.

Storey, Leak & Storey, of Vernon, for appellees.

JACKSON, J.

This is an appeal from a judgment of the district court of Wilbarger county, overruling the pleas of privilege of the appellants, the First National Bank of Electra, Tex., and Edward Schlaffke, to be sued in Wichita county, the county of their residence.

The suit was instituted in the district court of Wilbarger county by appellees Jesse C. Guyer and his wife, Emma Guyer, to cancel a promissory note for the sum of $9,424.30, executed by them and payable to the First National Bank of Electra, at Electra, Wichita county, Tex., and to cancel a deed of trust given by appellees covering subdivision 122 of the Waggoner Colony lands in Wilbarger county, to secure the payment of said note. The appellees allege that the deed of trust lien is void because the land above described is and was, at the time of the execution of the deed of trust, their homestead. They set out in detail the facts upon which they rely to have such asserted lien cancelled.

The appellants interposed their respective pleas of privilege to be sued in Wichita county, where they had their domicile and where the note was payable.

The appellees filed their controverting affidavit, in which they state that the main purpose of their suit is to obtain a decree of court declaring said deed of trust lien void on the ground that said land was at the time of the execution of said deed of trust, and still is, their homestead; that they are husband and wife; that appellants have advertised said land to be sold in Wilbarger county; that appellees seek in their suit to have said deed of trust, in so far as it attempts to fix a lien upon said land, which is situated in Wilbarger county, Tex., and is their homestead, adjudged to be void and of no force and effect.

The appellants each filed an exception to the sufficiency of the controverting affidavit, which is, in effect, a general demurrer. These demurrers were overruled, and the court, after hearing the evidence, entered his judgment overruling the respective pleas of privilege of the appellants and retained jurisdiction of the case, from which action of the court this appeal is prosecuted.

The appellants challenge as error the action of the trial court in overruling their respective demurrers to the controverting affidavit of the appellees, because said controverting affidavit did not set out any exceptions contained in article 1995, R. S., authorizing the suit to be maintained out of the county of their residence, and did not allege that the moneys evidenced by the note was not the purchase price for the land.

In our opinion, the controverting affidavit was sufficient as against a general demurrer. Sims v. Trinity Farm Construction Co. (Tex. Civ. App.) 28 S.W.(2d) 856.

The appellants...