Neel v. First Presbyterian Church of Marlin

225 S.W. 411, 1920 Tex. App. LEXIS 1034

• Court: Court of Appeals of Texas
• Decided: October 13, 1920
• Docket: No. 6226.
• Status: Published

Opinion

JENKINS, J.

The appellants herein filed their plea of privilege to be sued in McLen-nan county. This plea was overruled by the court, and this appeal is prosecuted from such ruling.

Findings of Fact.

J. E. Neel entered into a contract with ap-pellee to erect for it a church building in Falls county. Said church organization and the trustees thereof had their domicile in said county at the time of the execution of said contract and. at the time of bringing this suit. Neel executed a bond, payable to ap-pellee, in accordance with the provisions of articles 5623 and 5623a, Vernon’s Ann. Civ. St. Supp. 1918, in which bond appear the words “payable at Waco, Texas.” These words were not required by the statute in such case. The appellants herein signed said bond as sureties. At the time of signing the same, and at the time of the institution and of the, trial of this cause, they were residents of McLennan county, Tex.

Opinion.

The appellants alleged that the words “payable at Waco, Texas,” were inserted in said bond at their request, and upon the agreement between them and appellee that suit should be instituted upon such bond, if at all, only in McLennan county, and that it was understood between the parties, at the time of the execution of such bond that these words would confer exclusive jurisdiction upon the courts of McLennan county in the event suit was brought on the bond. Their contention is that under such plea they should have been permitted to show such fact by oral testimony. The statute authorizes suits of this character to be brought in the county where the owner resides, or where the work is to be performed. Article 5623a.

We affirm, the judgment of the lower court upon authority of Travelers’ Association v. Branum, 169 S. W. 389, and (Sup.) 212 S. W. 630, wherein it is held that venue is fixed by law, and not by contract.

Additional Finding of Facts.

At the request of appellant, we mate this additional finding of fact:

Appellants allege that when the bond herein sued on was presented to. them they were citizens of McLennan county, and declined to sign said bond unless it should be so drawn that they could not be sued in any county other than McLennan. Ail parties at interest believed that by inserting the words, “Payable at Waco, Texas,” exclusive venue would be conferred upon the district court of Mc-Lennan county. They alleged these facts in their plea of privilege. Upon demurrer the court struck out said plea.