Collier v. Steinhardt , 16 S.W.2d 984 ( 1929 )

Collier and wife appeal from an order overruling their plea of privilege to be sued in Hidalgo county. For the disposition of the appeal the following statement will suffice, viz.:

Appellee, Steinhardt, brought this suit in Bexar county against W. B. Glasscock, his wife, Mabel C. Glasscock, and appellants Collier, all alleged to be residents of Hidalgo county. The suit was based upon a promissory note executed by W. B. Glasscock, secured by deed of trust upon land in Hidalgo county and on a Hudson automobile, motor No. 292734, car No. 595479. It was alleged the land had been conveyed by the Glasscocks to the Colliers subsequent to the date of the deed of trust. Judgment was sought against W. B. Glasscock for the amount of the note, judgment of foreclosure upon the land against all defendants, and judgment of foreclosure upon the automobile against the Glasscocks.

The controverting affidavit to the plea of privilege does not aver that the automobile was situate in Bexar county, but alleges that the note sued upon is payable in San Antonio, Bexar county, Texas, and the "mortgage performable in Bexar county, Texas." The note offered in evidence in support of the controverting affidavit is not made payable in San Antonio. It is wholly silent as to the place of payment. Nor is there any provision in the deed of trust fixing San Antonio as the place of payment.

The only possible theory upon which venue could properly have been laid in Bexar county was by showing that the note was payable in that county, or some part of the mortgaged property was situate there (subdivisions 5 and 12, art. 1995, R.S.), which was not done. For this reason, the plea of privilege was improperly overruled.

Reversed and remanded, with instructions to change the venue to Hidalgo county.