Taylor v. Wilson

• Decision Date: 25 April 1906
• Citation: 93 S.W. 109
• Parties: TAYLOR v. WILSON.
• Court: Texas Supreme Court

93 S.W. 109

TAYLOR v. WILSON.

Supreme Court of Texas.

April 25, 1906.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by Charles A. Wilson against J. A. Taylor. On certified questions from the Court of Civil Appeals.

For opinion in Court of Civil Appeals, see 93 S. W. 108.

R. D. Wright, for appellant. Stevens & Pickett, for appellee.

WILLIAMS, J.

Certified question from the Court of Civil Appeals of the First District, as follows:

"On the 1st day of November, 1904, Chas. A. Wilson brought this suit in the justice court, precinct No. 4, of Liberty county, Tex., against J. A. Taylor on a money demand for $196.20. The venue was laid in that county on an allegation that plaintiff resided there and that defendant was a nonresident of the state. A writ of attachment was issued and levied on personal property of defendant within this state, and there was citation by notice which was personally served on defendant in the state of New York under the circumstances hereinafter detailed. Defendant interposed his plea of privilege to be sued in this state in the county of his residence. The plea was sufficient in form and substance, and the issue presented thereby was duly tried by the court and found against defendant. Thereupon the court heard the cause upon the merits, and rendered judgment for plaintiff as prayed for. An appeal to the county court had a like result both on the plea in abatement and the merits, and the defendant has brought the cause to this court for review. He assails the action of the trial court in overruling his plea to venue, and insists that under the agreed facts the cause should have been dismissed. The following are, in substance, the agreed facts upon the issue:

"The defendant was engaged in the oil business in the city of Beaumont, Jefferson county, Tex., and he had been for the 14 months next preceding the filing of the suit, and had remained there. That he had been an inhabitant of said city of Beaumont, and had been personally present and attending to his business there all during said 14 months, except three trips he had made to visit his family at White Plains, N. Y. That defendant was in the city of Beaumont at the time this suit was filed (November 1, 1904), and had remained there until November 10, 1904, when he left for White Plains to visit his family. Defendant had never gone out of business in Beaumont, Tex., and did not know how long he would continue in business there. Defendant was a citizen of White Plains, N. Y., where his family resided, and defendant had been an inhabitant of White Plains continually until he first came to Texas to engage in the oil business, and had never abandoned his home in White Plains, but had a residence there as well as in the city of Beaumont. Defendant had business interests in New York as well as in Texas. * * * It was shown that defendant had never been a resident of Liberty county, Tex. Was not a transient person. That his residence was not unknown. It was further agreed in substance that nothing in the facts brought the case within any other of the exceptions to the general provision that suit must be brought in the county of defendant's residence. The notice was served on defendant in White Plains, N. Y., on the 15th of November, 1904, where he had gone to visit his family, having left Texas on the 10th of that month. Following Railway Co. v. Rogers, 82 S. W. 822, 11 Tex. Ct. Rep. 195, we reversed the judgment, and dismissed the cause on the ground that the undisputed facts sustained the plea in abatement.

"For the reason that this cause cannot otherwise reach the Supreme Court, and because your refusal of writ of error in Rogers Case, supra, did not necessarily involve an approval of what was there said by us upon this point, we deem it wise to certify for your decision the following question:

"Did this court err in sustaining the plea of privilege?"

The statute to be construed provides: "No person who is an inhabitant of this state shall be sued out of the...