Fox v. Cone

• Decision Date: 06 February 1929
• Docket Number: (No. 983-5133.)
• Citation: 13 S.W.2d 65
• Parties: FOX, Sheriff, et al. v. CONE.
• Court: Texas Supreme Court

13 S.W.2d 65

FOX, Sheriff, et al. v. CONE.

(No. 983-5133.)

Commission of Appeals of Texas, Section B.

February 6, 1929.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by O. L. Cone against C. P. Fox, Sheriff, and others, in which pleas of privilege were filed by all of the defendants. From order overruling pleas of privilege, the defendants appealed to the Court of Civil Appeals, by which questions were certified to the Supreme Court. Questions answered.

Fly & Ragsdale, of Victoria, for appellants.

Emmett B. Cocke, of San Antonio, for appellee.

SHORT, P. J.

The following certificate has been presented to the Supreme Court by the honorable Court of Civil Appeals of the First Supreme Judicial District:

"An issue of law has arisen in this cause which we deem it advisable to present to you for adjudication, the facts in the record giving it rise and the formulation of it into resulting inquiries being as follows: Appellee, plaintiff below, filed this suit against the appellants, C. P. Fox, sheriff of Refugio County, Texas, J. I. Heard, his deputy, D. S. Fox, J. M. O'Brien, and W. J. Fox, the latter three being sureties on the official bond of the sheriff, the petition being filed on November 21, 1927. The suit was brought for damages, actual and exemplary, alleging the false arrest and imprisonment of appellee by the appellant, J. I. Heard, acting as deputy sheriff under C. P. Fox, sheriff of Refugio county, and alleging that all acts in connection with the alleged false arrest and imprisonment and other matters complained of incident thereto occurred in Refugio County, Texas, on or about June 30, 1927. At the time of the arrest appellee had an extra generator in his car that Heard and Sheriff Fox asserted was stolen property. The petition recites that appellee was arrested and placed in jail and his Ford car, including the extra generator, were taken possession of by the officers and held by them. Deputy Heard alone, it is asserted, made the arrest and placed appellee in jail.

"The petition recites the residence of the plaintiff, O. L. Cone, to be in Wilson County, and the residence of C. P. Fox, sheriff, J. I. Heard, deputy sheriff, D. S. Fox and J. M. O'Brien, sureties on the sheriff's official bond, all to be in Refugio County, Texas, and the residence of W. J. Fox, another surety on the bond, to be in Harris County, Texas.

"Pleas of privilege were appropriately filed by all the defendants claiming their several rights to be sued in Refugio County, Texas, all but W. J. Fox pleading their residence in Refugio County, and that the suit, being one for damages for trespass alleged to have been committed in Refugio County only, must be brought in that county. W. J. Fox in his plea of privilege asserted that he was simply a surety on the bond of sheriff C. P. Fox, and, while he lived in Harris County, Texas, that fact did not confer venue in this class of case in Harris County, and plead his right to be sued with his principal in Refugio County.

"Appellee filed his controverting affidavit in proper time and form, wherein he asserted jurisdiction and venue of the entire case in Harris County by reason of the fact that W. J. Fox, one of the sureties on the sheriff's official bond, joined as a defendant, had his residence in Harris County.

"The hearing on the pleas of privilege was had on February 2, 1928, and they were overruled upon the pleadings without the introduction of testimony, the court's order reciting:

"The parties having agreed in open court through their attorneys of record, that for the purpose of this hearing, the allegations of fact as to residence of the parties and the place where all the acts of defendants complained of as contained in the plaintiff's petition and the pleas of privilege by the defendants are true."

"Question No. 1: Was the suit as brought maintainable in Harris County under subdivision 4 of R. S. Article 1995, or did subdivision 9 thereof require the venue to be exclusively laid in Refugio County, the situs of the alleged trespass and the domicile of both the sheriff and his offending deputy?

"2. If it was lawfully maintainable in Harris County against the resident defendant, W. J. Fox, what others of the defendants were also suable there as necessary parties under the provisions of section 2 of Chapter 72, Acts of the First Called Session, 40th Legislature, page 197?"

The Constitution in two sections of the Bill of Rights, 9 and 19, guarantees to the citizen redress for wrongs such as are outlined in the petition in this case committed against him. The courts must therefore be clothed with jurisdiction to administer such redress. Article 1995 of the Revised Statutes, in effect, subjects every one, who is liable to suit, to be sued in the county in which he has his domicile, except in certain enumerated cases. This article lays down the general rule in this state on this subject. This general rule has been construed by the courts to be favorable to the rights and interest of defendants, since experience has demonstrated such right and privilege, so given, to be a valuable one. The language of article 1995 is "no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases." Generally speaking, the meaning of this statute is that every defendant is entitled to be sued in the county in which he has his domicile, unless it is shown that the case falls within some of the exceptions. Usually these exceptions, to the general rule, give to the plaintiff, in a case, an additional right to sue the defendant, not only in the county in which he has his domicile, but in some other county, as, for instance, a person living in one county, who has contracted in writing to perform an obligation in another, may be sued in the county of his domicile or in the county where he has agreed to perform the obligation. Likewise a suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile. So in the case stated in the certificate, to the extent that the suit is...