Middlebrook v. David Bradley Manuf'G Co.

• Decision Date: 21 June 1894
• Citation: 27 S.W. 169
• Parties: MIDDLEBROOK et al. v. DAVID BRADLEY MANUF'G CO.
• Court: Texas Court of Appeals

27 S.W. 169

MIDDLEBROOK et al. v. DAVID BRADLEY MANUF'G CO.

Court of Civil Appeals of Texas.

June 21, 1894.

On rehearing. Reversed.

For prior reports, see 26 S. W. 113, 935.

GARRETT, C. J.

Pending motion for rehearing in this case, we certified to the supreme court the questions arising out of the facts affecting the jurisdiction of the court below to render its judgment after sustaining the plea to the venue as to one of the notes sued on, as follows: "The record shows that the David Bradley Manufacturing Company brought suit in the district court of Jackson county to recover of Middlebrook & Bro., a firm composed of I. W. Middlebrook, who resided in Colorado county, and R. O. Middlebrook, who resided in Hardin county, to recover on three promissory notes, as follows: All were dated February 1, 1887. Two of them were payable to the order of plaintiff, with ten per cent. interest, at J. W. Allen's Bank, Edna, Texas, which is in the county of Jackson. Both of these were due October 1, 1887, and were for the sums of $67.50 and $518.29, respectively; and the following credit is indorsed on the note for $518.29, to wit: `March 8, 1887. Credit, by new note, $160.00.' The third note was for the sum of $160, payable to the order of plaintiff on January 1, 1886, with ten per cent. interest. It was not payable at any particular place, and had a pencil memorandum on the lower margin thereof, `To be indorsed on note of $518.29.' Defendants pleaded their privilege to be sued in the county of the residence of one of them, and that the amount of the other two notes was not within the jurisdiction of the district court. Plaintiff moved to strike out the plea to the venue, because (1) it had not sooner been called to the attention of the court and acted on; and (2) the indorsement on the note for $518.29 was not in effect a credit thereon. But, when the motion was called up, the court below overruled the first ground, and, as to the second, took it with the case on the merits. On the trial, the court sustained the defendant's plea to the venue as to the note for $160, but retained jurisdiction as to the other two notes, and rendered judgment in favor of plaintiff for the principal and interest thereof, less the credit of $160, indorsed on the note for $518.29. Upon the foregoing statement, the following question of law arises, which is certified to the supreme court for its determination: Was the plaintiff entitled to judgment for the amount of the other two...