Holcomb v. Williams

• Decision Date: 31 March 1917
• Docket Number: (No. 8586.)
• Citation: 194 S.W. 631
• Parties: HOLCOMB v. WILLIAMS et al.
• Court: Texas Court of Appeals

194 S.W. 631

HOLCOMB v. WILLIAMS et al.

(No. 8586.)

Court of Civil Appeals of Texas. Ft. Worth.

March 31, 1917.

Appeal from District Court, Tarrant County; R. B. Young, Judge.

Suit by E. H. Holcomb against J. D. Williams and another. From an order sustaining a plea of privilege and changing the venue of the case, plaintiff appeals. Order set aside, and cause reversed, with directions to overrule the plea of privilege.

D. T. Bomar and Templeton & Milam, all of Ft. Worth, for appellant. Bryan, Stone & Wade, of Ft. Worth, for appellees.

CONNER, C. J.

Appellant, E. H. Holcomb, instituted this suit in the district court of Tarrant county, Tex., against J. D. Williams and George Rainey, to recover upon certain promissory notes executed by Williams. As described in the petition, the notes were made payable in Tom Green county, Tex., and it was alleged that they had been given as part of the purchase money of a tract of land described in the petition, and the plaintiff sought to foreclose a vendor's lien given to secure the notes. It also appears, as alleged, that the appellant, Holcomb, at the date of the institution of the suit was resident citizen of Tarrant county, Tex., and that J. D. Williams and George Rainey were each nonresidents of the state. The plaintiff's prayer was for a recovery of the sum of money due, as evidenced by the notes, against J. D. Williams, and for a foreclosure of the said vendor's lien against the defendant George Rainey, who it was alleged claimed some interest in the land upon which the lien rested.

The defendant Williams, though duly cited, made no answer. The defendant George Rainey, however, presented a plea of privilege to be sued in Tom Green county, Tex. The plea of privilege set up the fact that the notes were made payable in Tom Green county, that the land upon which it was sought to foreclose the lien was there located, and that he (Rainey) was a resident citizen of the state of Illinois.

Upon a hearing the court sustained the plea of privilege and changed the venue of the case to Tom Green county, from which said order the plaintiff, as allowed under our statutes, has prosecuted an appeal.

As alleged in both the plaintiff's petition and in the plea of privilege, both defendants are nonresidents of the state of Texas, and the plaintiff, Holcomb, is a resident of Tarrant county, Tex. Of these facts as alleged there is no dispute, so that the question for our determination is merely whether, as a matter of law, under the allegations and undisputed facts, the appellee Rainey had the right to demand that the plaintiff's suit be instituted and tried in the proper court in Tom Green county, instead of in Tarrant county. The solution of the question depends upon the provisions of our statutes relating to the subject of venue.

Article 1830, Vernon's Sayles' Texas Civil Statutes, provides that:

"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, to wit. * * *" Thereupon some 29 exceptions to the general rule as thus stated are set forth. Evidently the general rule can have no application in this case, for by its terms it is applicable only to inhabitants of this state. Appellee, being an inhabitant of the state of Illinois, does not come within the purview of the general rule. He claims the privilege of being sued in Tom Green county, however, by virtue of several of the exceptions which follow the general rule. The exceptions relied upon are Nos. 5, 12, and 14. Exception No. 5 reads as follows:

"Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile."

Exception No. 12 thus reads:

"Where the suit is for the foreclosure of a mortgage or other lien, in which case suit may be brought in the county in which the property subject to such lien, or a portion thereof, may be situated."

And in exception No. 14 it is declared:

"Suits for the recovery of lands or damages thereto, suits to remove incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie."

In connection with and in aid of the exceptions just quoted, appellee urges paragraph 30 of article 1830, which is as follows:

"Whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given."

The judgment of the court below evidently rests upon appellee's contention that paragraph 30 last quoted so operates on exceptions 5 and 12 as to establish the proper...