Taylor v. Sturgis
| Decision Date | 19 April 1902 |
| Parties | TAYLOR et al. v. STURGIS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Action by W. H. Taylor and another against W. W. Sturgis and J. D. Kendrick. From a judgment in favor of defendant Sturgis, plaintiff and defendant Kendrick appeal. Reversed.
Wear, Morrow & Smithdeal and Nelson Phillips, for appellants. Hill, Dabney & Carlton, for appellee.
W. H. Taylor sued W. W. Sturgis and J. D. Kendrick. Taylor and Kendrick were alleged to be residents of Hill county, and Sturgis a resident of Grayson county. Plaintiff, for cause of action, alleged, in substance, that Sturgis had loaned money to Kendrick, for which Kendrick had executed his note, which note Kendrick had paid off and discharged; that said payment included interest, amounting to $769, which was usurious, for which said Kendrick had a right of action against said Sturgis, which right of action said Kendrick had, for a valuable consideration, transferred to plaintiff, and had guarantied the payment thereof. It was further alleged that the note was paid off by Kendrick and his wife conveying to Sturgis a tract of land valued at $7,000, a part of which consideration for the land was settled by Sturgis indorsing the said note without recourse to the wife of Kendrick, and turning the same over to her. Sturgis, in due order of pleading, filed a plea in abatement claiming the privilege of being sued in his own county, and alleging that the assignment to plaintiff was simulated and fraudulent, and done for the purpose of conferring jurisdiction on the district court of Hill county. Also, without waiving his plea in abatement, answered by demurrer and to the merits. Kendrick also answered, and set up a cross action against Sturgis, alleging practically the same facts that plaintiff had alleged, and praying that he recover against Sturgis in the event a recovery was denied to plaintiff. Sturgis then, in due order of pleading, filed a plea of privilege to be sued in his own county as to said cross action, and then, without waiving said plea, answered to the merits. The cause was continued several times without prejudice to the pleas in abatement. When the cause was called for trial, the court ordered the exceptions to the pleadings to be first heard and determined, it being specially provided that this was not in any way to prejudice the pleas in abatement. Upon a hearing a general demurrer was sustained to the plaintiff's petition on the ground that a right to recover this penalty was not assignable, whereupon the plea in abatement, as against the cross action of Kendrick, was...
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