Prothro v. Smith

57 S.W.2d 921

• Court: Court of Appeals of Texas
• Decided: February 18, 1933
• Docket: No. 11238.
• Status: Published

Opinions

BOND, Justice.

This is an appeal from an interlocutory order of the district court of Kaufman county, overruling what appellants contend are pleas of privilege filed by appellant in a suit instituted by appellees, Irwin Smith and J. J. Parks, against appellants, Obie Prothro et al., in said court. Appellants’ pleas allege that the suit is an action of trespass to try title and to remove incumbrances from the title to land situated in Gregg county, and that the subject-matter of the suit is exclusively cognizable in the district court of Gregg county; and that the district court of Kaufman county is without jurisdiction to adjudicate the matter in controversy; that the suit does not come within any of the exceptions provided by law to be brought or maintained in Kaufman county, or elsewhere outside of Gregg, the county in which said land is located. The pleas do not raise the personal residential venue of any of the defendants in the suit, and in fact same could not be raised as none reside in Gregg county.

The pleas are filed in due order of pleading, sworn to, and are sufficient to raise the issue that the suit is not commenced in the proper county, in that, it is a suit for the recovery of land and damages thereto, and to remove incumbrances upon the title to land situated in Gregg county, and not in Kaufman county.

Appeals to this court do not lie from interlocutory orders of a lower court on pleas to the venue, which involve only the subject-matter of the suit. Pleas of privilege brought under article 2007, R. S., are personal, invoking only the issue of venue originating from the residence of the pleader. Where neither the domicile of the defendants nor the subject-matter of the suit are cognizable in the county where the suit is instituted, a plea of privilege, under the statute, is available, and the judgment of the court thereon is appealable; but, where the domicile of defendants is in one county, the subject-matter of the suit in another county, and the suit instituted in a third county, a plea to the venue, that the suit is not commenced in the county where the subject-matter of the suit is cognizable, is a plea in abatement. Action of a court on pleas in abatement, pleas in bar, pleas to the jurisdiction, and such like dilatory pleas, can only be reviewed by this court by assignments brought up on appeal in the original suit.

The pleas of appellants in this case are not available as pleas of privilege, and at the most are regarded as pleas in abatement, calling in question only that the venue of the suit is not commenced in the proper county, a suit concerning land located in another county. For reasons above stated, no appeal lies from the action of the court below, and this appeal is dismissed.

Dismissed.