Groves v. First Nat. Bank

• Court: Texas Supreme Court
• Writing for the Court: Acker
• Citation: Groves v. First Nat. Bank, 14 S.W. 163, 77 Tex. 555 (Tex. 1890)
• Decision Date: 03 June 1890
• Parties: GROVES <I>et al.</I> v. FIRST NAT. BANK OF BONHAM.

14 S.W. 163

GROVES et al. v. FIRST NAT. BANK OF BONHAM.

Supreme Court of Texas.

June 3, 1890.

Commissioners' decision. Appeal from district court, Fannin county.

C. D. Grace, for appellants. Taylor & Galloway, for appellee.

ACKER, P. J.

The First National Bank of Bonham brought this suit in the justice's court of precinct No. 1, of Fannin county, against Smith Groves and James W. Groves as makers, and R. H. Taylor as indorser, on a promissory note for $150. The defendants Smith and James W. Groves pleaded that they were residents of precinct No. 3, and claimed their privilege of being sued in that precinct. They also pleaded that the note sued on was the property of R. H. Taylor, and not the property of plaintiff, and that the consideration for which the note was given had failed. These pleas were sworn to by both defendants Groves. The trial in the justice's court resulted in judgment for plaintiff, from which the defendants Groves appealed; and the trial without a jury in the district court also resulted in judgment for the plaintiff, from which the defendants Groves prosecute this appeal. The record contains no statement of facts, or conclusions of the trial court. It appears from a bill of exception that on the trial plaintiff offered in evidence the note sued on, and rested, whereupon the defendants demurred to the evidence; and the court overruled the demurrer, and rendered judgment for the plaintiff.

The first assignment of error is: "The court erred in not sustaining the plea of defendants to the jurisdiction of the court, for that, in the sworn plea of defendants, they showed that they are residents of precinct No. 3, Fannin county, Tex., and this suit was had in precinct No. 1, Fannin county, Tex. The note sued on, being payable to R. H. Taylor or bearer, was not such an instrument as, by a simple indorsement thereon by said R. H. Taylor, would give jurisdiction to the J. P. court of precinct No. 1, of Fannin county, Tex." In disposing of this assignment, it would probably be sufficient to say that it does not appear that any evidence was offered to sustain the plea of privilege. The mere averment of facts, without proof of them, is insufficient to found a judgment upon. Upon inspection of the plea, however, we find that it does not negative the fact of defendant Taylor's residence in the precinct where the suit was brought. In the absence of both a statement of facts, and findings by the court, we must presume that the facts were...