Gorbett v. Berryman Watters , 7 S.W.2d 100 ( 1928 )

The contention of the appellant that it was error to overrule his "plea of privilege" to be sued in Hale county is on the theory that the plea was a sufficient one and that appellees failed to support by proof their controverting plea intended to show he was liable to be sued in Cherokee county. The law is that a plea of privilege complying with the requirements of the statute (article 2007, R.S. 1925) when filed entitles the defendant interposing it to have the suit against him transferred for trial on its merits to the county in which he resides, unless the plaintiff files a sufficient controverting plea and on the hearing thereof proves the matter set up therein showing a right in him to maintain the suit in the county in which he commenced it. Accident Co. v. Cole (Tex.Civ.App.) 300 S.W. 649, and authorities there cited. We will not undertake to determine whether the controverting plea was a sufficient one or not, nor, if it was, whether it was supported by proof or not (Ketner v. Grocery Co. [Tex. Civ. App.] 299 S.W. 680); for, if the decision as to both those matters was favorable to appellant, we would feel bound, nevertheless, to overrule his contention, on the ground that his plea of privilege was not sufficient, in that it did not appear therefrom, and the statute required it should, that appellant was not a resident of Cherokee county at the time he filed the plea. It appeared that appellant was a resident of Hale county, and not a resident of Cherokee county, at the time the suit was filed and at the time the citation issued therein was served upon him; but, for anything appearing to the contrary in his plea of privilege, he was a resident of Cherokee county as well as Hale county at the time same was filed. Littlefield v. Clayton (Tex.Civ.App.) 194 S.W. 194. If he was then a resident of said Cherokee county, the suit against him was maintainable there without respect to whether the note sued upon was payable there or not, and the error of the trial court, if any, would appear to be in sustaining pleas of privilege interposed by other defendants to the suit, and not in overruling the plea of appellant. Cobb v. Barber, 92 Tex. 309, 47 S.W. 963.

The judgment is affirmed.

On Motion of Appellant for a Rehearing and to Certify.

It is insisted that the conclusion reached by us that appellant's plea of privilege was insufficient because it did not appear therefrom that he was not a resident of Cherokee county at the time he filed same is in conflict with the decision of the San Antonio Court of Civil Appeals in Poole v. Oil Ass'n, 209 S.W. 706, and the decision of the Eastland Court of Civil Appeals in Slaughter v. Slaughter, 284 S.W. 350. Both those cases were considered at the time this one was decided. We thought the Poole Case was distinguishable from this one in its facts and in that the statute (article 1903, R.S. 1911) applicable in that case was materially different from the statute (article 2007, R.S. 1925) applicable in this one. The Slaughter Case was like this one, but in deciding it the court followed the Poole Case without noting the difference in the statutes.

The motions are overruled. See International G. N. R. Co. v. Pleasants, 116 Tex. 568, 296 S.W. 282.