Freiberg, Klein & Co. v. T. S. Greenlay & Co.

2 Wilson 490

• Court: Court of Appeals of Texas
• Decided: February 18, 1885
• Docket: No. 1741
• Status: Published

Opinion

Opinion by

Hurt, J.

§ 547. Plea of privilege to be sued in county of residence; sufficiency of; case stated. Appellants sued appellees to recover a debt, in the county court of Colorado county, alleging that appellees, under the firm name of T. S. Greenlay & Co., were doing a mercantile business in said Colorado county, said firm being composed of T. S. Greenlay and W. O. Langdon, and that both of said defendants resided in Bexar county. Appellants further alleged in an amended petition, that appellees’ firm constituted an association of persons doing business as retail merchants in said Colorado county. Appellees pleaded their privilege to be sued in Bexar county, the county of their residence. Exceptions to this plea were overruled, and the jilea was sustained and the suit dismissed. The plea alleged that defendants, at the time of the institution of the suit, were residents of Bexar county, and that they had not promised in writing to pay the debt sued for in Colorado county. Held, this plea was sufficient. It was not necessary that the plea should anticipate and exclude all the exceptions named in article 1198, Revised Statutes. It anticipated and negatived the exception mentioned in subdivision 5 of that article, which is the only one that could have been applicable in this case, and this being done, the plea was sufficient. Subdivision 21 of said article is not applicable, because both the petition and plea show that the firm of T. S. G-reenlay & Co. was not an association of persons within the meaning of the statute, because it was composed of but two persons, whereas it requires at least three persons to constitute an association. [R. S. art. 565.]

February 18, 1885.

Affirmed.