Watson v. Baker
| Decision Date | 12 November 1886 |
| Citation | 2 S.W. 375 |
| Court | Texas Supreme Court |
| Parties | WATSON <I>v.</I> BAKER. |
E. W. Terhune, for appellant. E. B. Perkins and L. D. King, for appellee.
Appellant brought this suit in the district court of Hopkins county, and alleged appellee's residence in Franklin. The object of the suit was to rescind a parol sale made by appellee to appellant of certain lands, live stock, and farming implements, situate in the former county, and to recover back the sum of $4,000, alleged to have been paid by appellant as part of the purchase money for the property. The grounds on which the rescission was sought were false and fraudulent representations as to the entire body of lands sold, the number of acres in the farm, and inclosed pasture upon the property, and as to the location of the several tracts of land with reference to each other. The misrepresentations and the sale were alleged to have been made in Hopkins county. A general demurrer was sustained to the petition, and plaintiff filed a trial amendment, after which the demurrer was overruled.
It is sufficient to say, for the purposes of this opinion, that in our judgment the petition and amendment made a good case for the rescission of the contract on the ground of fraud, and that the demurrer to them was properly overruled by the court. Defendant pleaded to the jurisdiction of the court, alleging only that his residence was in Franklin county. This plea was under oath. He specially excepted to the jurisdiction of the court on the same ground, and also filed a general demurrer, a general denial, and a special answer, which in the view we take of the case it is not necessary to notice. No action was taken on the plea to the jurisdiction or on the special exception. But the parties went to trial on the merits before the court without a jury; and, after hearing the evidence, the case was dismissed for want of jurisdiction. The action of the court in dismissing the cause for the want of jurisdiction is brought here for revision.
The assignments of error raise the question of the correctness of that ruling only. Consent cannot confer jurisdiction over the subject-matter of a suit; and whenever it becomes apparent to a court, at any stage of the progress of the cause, that it has no authority under the law to adjudicate the issues presented, it becomes its duty to dismiss it. Able v. Bloomfield, 6 Tex. 263; Snyder v. Wiley, 59 Tex. 448. But the right of a defendant to plead to the jurisdiction of the court, when sued out of the county of his residence, is a personal privilege, which, if not exercised at a proper time and in a proper manner, does not take away the authority of the court to hear and determine the case made against him. Campbell v. Wilson, 6 Tex. 379; Burnley v. Cook, 13 Tex. 586. Jurisdiction as to the subject-matter must be determined in the first instance by the petition;...
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