Tucker v. Anderson

• Decision Date: 01 January 1863
• Citation: 27 Tex. 276
• Parties: P. C. TUCKER, ADM'R, v. J. S. ANDERSON.
• Court: Texas Supreme Court

27 Tex. 276

P. C. TUCKER, ADM'R,

v.J. S. ANDERSON.

Supreme Court of Texas.

1863.

The defendant who had, for eighteen years, resided on his plantation in W. county, actuated by considerations of health, removed his white family and house servants in June, 1856, to C. county, where they remained until October, 1858, during which time the plantation in W. county was still carried on. Held, that in February, 1858, the defendant had such a residence in C. county as authorized the plaintiff to sue him in that county.

See this case for evidence held to be insufficient to sustain a verdict for the defendant, on his plea to the jurisdiction, which alleged his residence to be in a different county from that of the forum; and also for a charge of the court below, on the issue in abatement, held not to be strictly accurate.

NOTE.--Ex parte Blumer, post, 734.

The observations of Chief Justice Wheeler in Brown v. Boulden (18 Tex., 431), on the same question, cited and approved.

ERROR from Comal. Tried below before the Hon. Thomas J. Devine.

This suit was brought by the plaintiff in error against the defendant in error in the district court of Comal county, on the 4th of February, 1858, to recover the amount of several promissory notes. Citation for the defendant being returned “not found” by the sheriff of Comal county, the plaintiff, by an amended petition filed July 10, 1858, alleged that the defendant then sometimes resided in the county of Blanco and sometimes in the county of Wharton, and prayed for process to those counties, which, however, does not appear to have issued under this amendment. On March 14, 1859, the plaintiff amended again, alleging that the defendant then resided in Wharton county, and prayed process to that county. Citation issued accordingly, and was served on the defendant by the sheriff of Wharton county on the 7th of April, 1859.

The defendant appeared and pleaded, 1st, a general demurrer for insufficiency; 2d, in abatement, denying that he was a resident of Comal county at the institution of the suit, and alleging that he was and had been, for eighteen years, a resident citizen of the county of Wharton, and that his sojourn in Comal county had only been of a temporary character; and 3d, a general denial.

The case came to trial at the fall term, 1859, when the court permitted the defendant to withdraw his demurrer, and the case went to the jury on the plea in abatement. By witness Cocklin, defendant proved that in February, 1858, he had his white family and two or three of his house servants on the Blanco in Comal county; that, in the previous fall, witness had hauled corn for the defendant, from the latter's plantation in Wharton county to where his family were on the Blanco; that defendant had a plantation and negroes and a furnished residence in Wharton county, where he was, and for several years had been, carrying on the business of planting. Witness had always understood from defendant himself that he had selected the place on Blanco as a retreat during the sickly season in the lower country, and for the health of his family. Witness stated that defendant brought his sick family, consisting of his wife and three children, to the Blanco in the month of June, 1856, and they remained there until about October, 1858; that one of the children was sick a long time, and, on its recovery, the family left for Wharton county; that defendant was often away from the Blanco, attending to his business in Wharton county, and witness had been and still was his agent on the Blanco; that the defendant's place on the Blanco was a mere temporary residence, where defendant had built some small houses or cabins; that the family complained that they were poorly furnished, and witness proposed to Mrs. Anderson to haul some furniture for the family from Wharton county, but she would not have it done, stating that she might not remain on the Blanco but a short time. Besides the houses, defendant had fenced in some thirty or forty acres of land, and had some hogs and about eight or ten cows on the Blanco place.

Sweeney, another witness for the defense, stated that he had known defendant to have lived in Wharton county for twelve or fifteen years past, and that his permanent residence was in that county, but that he had spent his summers in Matagorda county, on the Blanco, at the springs, and other places; that defendant had never done business elsewhere than in Wharton county, and only took his family to the place on the Blanco for the benefit of their health. Witness lived with defendant, and, from what the defendant told him, knew that he resided on the Blanco only temporarily, and on account of health.

It appeared in evidence that defendant had acted as clerk of an election in Comal county, at the request of the managers and for accommodation, and that he had cast his vote there, but whether only for state officers, or otherwise, was not shown. Also that he had been elected, but did not qualify, as justice of the peace.

The court instructed the jury as follows:

“1. The principal question for your consideration is this: Was the county of Comal the settled place of residence, or the permanent home, of J. S. Anderson and his family on the 4th day of February, 1858? If you believe that it was, you will so state as your verdict.

2. If, however, you believe, from the evidence, that the settled residence or home of the defendant Anderson was, in February, 1858, in Wharton county, and that his residence in Comal was for the health of his family, and with no intention of residing permanently in Comal county, then you will state those facts as your verdict. It is the legal right of every man to be sued in the county wherein is situated his home or permanent residence; and it is for you to decide, from all the facts and circumstances connected with this cause and in evidence before you, whether the county of Comal or Wharton was the home of the defendant and his family in February, 1858.”

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