Great Southern Life Ins. Co. v. Williams, 4330.
| Decision Date | 17 December 1934 |
| Docket Number | No. 4330.,4330. |
| Citation | 77 S.W.2d 900 |
| Parties | GREAT SOUTHERN LIFE INS. CO. v. WILLIAMS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Moore County; Reese Tatum, Judge.
Action by Joseph H. Williams and others against Great Southern Life Insurance Company. From an order overruling a plea of privilege, defendant appeals.
Affirmed.
Fred R. Switzer and Vinson, Elkins, Sweeton & Weems, all of Houston, and C. C. Small, of Amarillo, for appellant.
Otis Trulove, of Amarillo, for appellees.
Appellees sued appellant in the district court of Moore county. They denominate their action as one to cancel deeds of trust and remove cloud from the title to lands in Moore county created by virtue of the record of such trust deeds in said county in the deed of trust records thereof.
They allege in substance the ownership of lands lying partly in Moore county the obtaining of a loan on these from appellant, evidenced by certain notes and secured by trust deeds; the record of such trust deeds in the office of the county clerk of Moore county; facts which prima facie show such loan to be usurious; the payment of usurious interest and the amount thereof; the balance remaining of the principal after the application of such payments to its discharge, and allege a prior tender of such balance before suit, and renew such tender of payment in the pleadings. Their prayer is: "Plaintiffs pray for judgment adjudicating the amount owing by plaintiffs on said $40,000.00 principal note to be the sum of $8,319.48, as hereinabove alleged, or whatever sum there may be remaining unpaid on said principal note, after deducting all illegal interest paid by plaintiffs to the defendant on account of said loans, together with all principal sums paid thereon; that upon payment of such balance, or tender of payment thereof to the defendant, plaintiffs have judgment cancelling said deed of trust liens given to secure said note, and for removal of the cloud upon plaintiffs' title to the above described lands, created and existing by virtue of the record of said deeds of trust on the deed of trust records for Moore and Hutchinson counties, Texas, and plaintiffs further pray for all relief to which they may show themselves entitled under the law and the facts, whether general or special, legal or equitable."
To this suit appellant filed its plea of privilege to be sued in Harris county, admittedly its residence. A controverting affidavit was timely filed by appellees, the sufficiency of which has not been questioned here, claiming venue in Moore county by virtue of subdivision 14 of article 1995, R. S. 1925.
Upon a hearing the trial court overruled appellant's plea of privilege, and this ruling furnishes the basis for the only legal issue on this appeal.
"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: * * *
Article 5071, R. S., furnishes the basis for appellees' suit, and is as follows: "The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten per cent per annum on the amount of the contract; and all written contracts whatsoever, which may in any way, directly or indirectly, provide for a greater rate of interest shall be void and of no effect for the amount or value of the interest only; but the principal sum of money or value of the contract may be received and recovered."
In disposing of the question presented, we assume, without deciding, that the said loan was usurious. Both parties apparently present the case here upon that theory.
Upon this assumed hypothesis, the provision in the said recorded trust deeds for interest was void, by the express terms of the quoted stat...
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Galindo v. Garcia
...not. These observations are supported by an opinion written by Justice Martin, then of the Amarillo Court in Great Southern Life Ins. Co. v. Williams, Tex.Civ.App., 77 S.W.2d 900." In the last case cited Judge Martin said : "The district court of Moore County, therefore, under subdivision 1......
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