Caughan v. Urquhart , 265 S.W. 1097 ( 1924 )

We think the contention of Hale and Aycock, that the trial court erred when he overruled their "plea of privilege" and refused to transfer the case to Collin county for trial, should be sustained.

The statute provides that, except in cases it specifies, "no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile." Article 1830, Vernon's Statutes. One of the excepted cases is "where there are two or more defendants residing in different counties, in which case," it is declared, "the suit may be brought in any county where any one of the defendants resides." Subdivision 4 of said article. Evidently the trial court regarded this case as within the excepted class, because Caughan, one of the defendants, resided in Hunt county. But it is held that the defendant residing in the county where the suit is brought must be "a real defendant, and one against whom the plaintiff has a cause of action." Gambrell v. Tatum (Tex.Civ.App.) 228 S.W. 287; Bingham v. Emanuel (Tex.Civ.App.) 288 S.W. 1015; Shaw v. Stinson (Tex.Civ.App.) 211 S.W. 505. It may be conceded that it appeared from the allegations in Urquhart and Arnold's petition, set out in the statement above, that Caughan was such a defendant, but the contrary plainly appeared from the testimony at the trial, and, the plea of privilege being in conformity to the requirements of the statute, it devolved on Urquhart and Arnold to prove, as well as to allege, facts showing Caughan to be such a defendant. Ray v. Kimball (Tex.Civ.App.) 207 S.W. 351; Murphy v. Dabney (Tex.Civ.App.) 208 S.W. 981; Supply Co. v. Oil Co. (Tex.Civ.App.) 219 S.W. 838; Bledsoe v. Barber (Tex.Civ.App.) 220 S.W. 369; Eyres v. Bank (Tex.Civ.App.) 223 S.W. 268; Hutchison v. Hamilton (Tex.Civ.App.) 223 S.W. 864; Bank v. Sanford (Tex.Civ.App.) 228 S.W. 650; Sargent v. Wright (Tex.Civ.App.) 230 S.W. 781. The proof was that all Caughan did in connection with the bet was for the accommodation of Urquhart and Arnold, and that in doing what he did do he did not fail to discharge any duty he owed them. Plainly, Urquhart and Arnold had no cause of action against him. As they did not, they could not and did not acquire a right by making him a party to sue Hale and Aycock in Hunt county.

The judgment will be reversed, and the cause will be remanded to the court below, with instructions to transfer same to Collin county for trial, as provided by the statute. Article 1833, Vernon's Statutes.