Higgins v. Frederick

• Decision Date: 01 January 1869
• Citation: 32 Tex. 282
• Parties: C. HIGGINS v. OTTO FREDERICK.
• Court: Texas Supreme Court

32 Tex. 282

C. HIGGINS

v.OTTO FREDERICK.

Supreme Court of Texas.

1869.

1. S, a resident of Comal county, mortgaged land in Bexar county to F, to secure certain notes. H, a resident of Bastrop county, subsequently bought the land from S. F brought suit in the district court of Bexar county against H alone, alleging that H had assumed payment of the notes, and praying a general judgment against him on his assumpsit, as well as a foreclosure of the mortgage. H excepted for want of jurisdiction in the district court of Bexar county. Held, that the exception was well taken, and should have been sustained; and that the tenth exception to art. 1423, Pas. Dig., does not apply to such a case, nor authorize such a suit to be maintained in another county than that in which the defendant resides.

2. The tenth exception, just referred to, authorizes suit in the county where the land lies only where the foreclosure of mortgages or lien “is the specific object of the suit;” and it would seem that the foreclosure must be the principal cause of action, and not a mere incident to another cause of action.

3. In this case, inasmuch as the mortgagor was not made a party to the suit, it cannot be considered as a suit to foreclose the mortgage.

4. When the plaintiff's petition disclosed the fact that the only defendant was a resident of a different county than that in which the suit was brought, it was not necessary that the defendant's plea to the jurisdiction, founded on that fact, should be sworn to.

APPEAL from Bexar. Tried below before the Hon. Thomas H. Stribling.

One Christian Schleyer and his wife, on the 26th day of February, 1857, made their note for $500, payable to Otto Frederick, the appellee, one year after date, and also executed to him a mortgage on real estate in the city of San Antonio, Bexar county, to secure payment of the note. In August of the same year they made another note to Frederick for a similar amount, also payable in twelve months, and secured it by deed of trust on the same property.

In May, 1867, Higgins, the appellant, bought the property from Schleyer and wife, for considerations which, in view of the opinion, need not be detailed.

On the 23d of April, 1868, Frederick brought this suit in the district court of Bexar county. He made Higgins the only defendant, and in his petition alleged that Higgins was a resident of the county of Bastrop. He alleged the locality of the mortgaged lots to be in Bexar county, setting forth the mortgages, and represented that Higgins had promised and assumed to pay the notes executed by Schleyer and wife to him, the plaintiff. He prayed for judgment against Higgins for the amount of the notes, and also for a decree foreclosing the mortgages.

Higgins filed an unsworn exception or answer, denying that the court had jurisdiction of the cause, by reason of the fact that he, the defendant, as stated in the petition, was a resident of Bastrop county; and denying that the allegations in the petition brought the case within any of the exceptions to the provision of the statute requiring defendants to be sued in the county of their residence.

The court treated this as an unsworn plea in abatement, and sustained exceptions of the plaintiff to it.

In view of the opinion of this court, there is no occasion to give a further account of the trial below, which resulted in a verdict for the plaintiff against the defendant for $1,000, and unpaid interest, and in a finding in the verdict that the property was still subject to the mortgages. On this verdict...