Pool v. Pickett

• Decision Date: 01 January 1852
• Parties: POOL v. PICKETT.
• Court: Texas Supreme Court

8 Tex. 122

POOL

v.PICKETT.

Supreme Court of Texas.

1852.

A plea to the jurisdiction that the use of the plaintiff's name as plaintiff and that of a co-defendant as defendant, and the indorsement on the note sued on, are but fraudulent contrivances to confer jurisdiction upon the District Court of the county in which the co-defendant (the indorser) resides, and to deprive the defendant of the privilege of being sued in the county of his domicile, is good.

A party cannot be deprived of the privilege of being sued in the county of his domicile by the joinder of a person who resides in the county where the suit is brought as a co-defendant, unless such joinder be bona fide and not merely for the purpose of giving the court jurisdiction. (Note 24.)

Although the plaintiff may, by a failure to answer interrogatories, have admitted or confessed the defendant's privilege to be sued in a different court, yet if the defendant suffer the case to proceed to verdict and judgment on the merits, without calling his question of privilege to the notice of the court below, he will be deemed to have waived it. (Note 25.)

Error from Red River. This was a suit by Pickett as indorsee of the promissory note of Pool, payable to Rhine Brothers & Co., of New Orleans, or bearer, and indorsed by Rhine Brothers and Co., and also by one Samuel Rhine. The suit was brought jointly against Pool, who resided in Bowie, as maker, and Samuel Rhine, who resided in Red River, as indorser.

The defendant alleged in his answer that Samuel Rhine was one of the firm of Rhine Brothers & Co.; that the indorsement from Rhine Brothers & Co. to Samuel Rhine and from Samuel Rhine to Pickett was merely colorable, and fraudulently contrived to enable Rhine Brothers & Co., the real owners of the note, to sue the defendant Pool in the county of Red River, where Samuel Rhine resided. There was a verdict and judgment for the plaintiff, and the defendant, Pool, prosecuted this writ of error. There was no statement of facts.

Pirkey and Peters, for plaintiff in error.

HEMPHILL, CH. J.

The note in suit was made payable to Rhine Brothers & Co., or bearer, and the defendant, Pool, who was the maker of the note, avers that the use of the name of Wm. L. Pickett as plaintiff and the indorsement on the note are but fraudulent contrivances to divest the District Court of the county in which he resides of jurisdiction and confer it upon that of the county in which the indorser, Samuel Rhine, has his residence, and that such artifice is oppressive, is in violation of the law, and that the venue is thereby improperly changed.

The said defendant also propounded interrogatories to ...