Wilkerson v. City Nat. Bank of Decatur

Court of Appeals of Texas

Wilkerson v. City Nat. Bank of Decatur

144 S.W. 360, 1912 Tex. App. LEXIS 103

DecidedJanuary 20, 1912

StatusPublished

This text of 144 S.W. 360 (Wilkerson v. City Nat. Bank of Decatur) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilkerson v. City Nat. Bank of Decatur, 144 S.W. 360, 1912 Tex. App. LEXIS 103 (Tex. Ct. App. 1912).

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Opinion

SPEEB, J.

This suit was instituted in the justice’s court of precinct No. 1, Wise eounty, against the Bhome Milling Company, a corporation, and A. W. Wilkerson, to recover damages for the breach of a contract of sale of wheat made between the milling company and Wilkerson; the claim having been transferred and guaranteed to the City National Bank by the Bhome Milling Company. Wilkerson interposed his plea of privilege to be sued in justice’s precinct No. 1, Hardeman county, Tex., the precinct of his residence, and the court’s action in overruling this plea will call for a reversal of the judgment.

'[1] Article 1585, Sayles’ Texas Civil Statutes, governing the venue of suits in the justice’s court, prescribes that “every suit in the court' of a justice of the peace shall be commenced in the eounty and precinct in which the defendant, or one or more of the several defendants, resides,” and the only ground upon which appellant Wilkerson could possibly be held to answer in the present suit is that the other defendant, the Bhome Milling Company, resides in precinct No. 1, Wise county, where the suit was brought. By subdivision 10 of the article above cited, it is provided that suits may be maintained against a private corporation in the eounty and precinct in which its principal office is situated, thus evidencing, if such evidence were necessary, that the place of residence of a private corporation is where its principal office is situated and its business transacted. The facts set forth in the bill of exception taken to the court’s action in overruling the plea of privilege leave little room to doubt that the Bhome Milling Company did not reside in precinct No. 1, Wise eounty, but did reside either in precinct 5 or precinct 7 of that county, where it had manufacturing plants. The most that can be said is that two of the three directors of the corporation resided in precinct No. 1, Wise county, and the corporation occasionally held directors’ meetings there.

[2] Of course, the fact that the Bhome Milling Company made no objections to being sued in precinct No. 1, or even that it might be suable there, would not prejudice the right of appellant to be sued in the precinct of his residence unless the milling company resided in precinct No. 1, Wise county,, thus bringing the case within the statute authorizing one to be sued out of the county and precinct of his residence. Johnson v. Lanford, 52 Tex. Civ. App. 397, 114 S. W. 693.

For this error the . judgment of the county court of Wise eounty is reversed, and the cause remanded, with instructions to sustain appellant’s plea and to enter an order changing the venue as to appellant Wilkerson to precinct No. 1 of Hardeman county in accordance with article 1194c of the act of April 18, 1907 (General Laws Texas 1907, p. 249).

Beversed and remanded.

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SPEEB, J.

This suit was instituted in the justice’s court of precinct No. 1, Wise eounty, against the Bhome Milling Company, a corporation, and A. W. Wilkerson, to recover damages for the breach of a contract of sale of wheat made between the milling company and Wilkerson; the claim having been transferred and guaranteed to the City National Bank by the Bhome Milling Company. Wilkerson interposed his plea of privilege to be sued in justice’s precinct No. 1, Hardeman county, Tex., the precinct of his residence, and the court’s action in overruling this plea will call for a reversal of the judgment.

'[1] Article 1585, Sayles’ Texas Civil Statutes, governing the venue of suits in the justice’s court, prescribes that “every suit in the court' of a justice of the peace shall be commenced in the eounty and precinct in which the defendant, or one or more of the several defendants, resides,” and the only ground upon which appellant Wilkerson could possibly be held to answer in the present suit is that the other defendant, the Bhome Milling Company, resides in precinct No. 1, Wise county, where the suit was brought. By subdivision 10 of the article above cited, it is provided that suits may be maintained against a private corporation in the eounty and precinct in which its principal office is situated, thus evidencing, if such evidence were necessary, that the place of residence of a private corporation is where its principal office is situated and its business transacted. The facts set forth in the bill of exception taken to the court’s action in overruling the plea of privilege leave little room to doubt that the Bhome Milling Company did not reside in precinct No. 1, Wise eounty, but did reside either in precinct 5 or precinct 7 of that county, where it had manufacturing plants. The most that can be said is that two of the three directors of the corporation resided in precinct No. 1, Wise county, and the corporation occasionally held directors’ meetings there.

[2] Of course, the fact that the Bhome Milling Company made no objections to being sued in precinct No. 1, or even that it might be suable there, would not prejudice the right of appellant to be sued in the precinct of his residence unless the milling company resided in precinct No. 1, Wise county,, thus bringing the case within the statute authorizing one to be sued out of the county and precinct of his residence. Johnson v. Lanford, 52 Tex. Civ. App. 397, 114 S. W. 693.

For this error the . judgment of the county court of Wise eounty is reversed, and the cause remanded, with instructions to sustain appellant’s plea and to enter an order changing the venue as to appellant Wilkerson to precinct No. 1 of Hardeman county in accordance with article 1194c of the act of April 18, 1907 (General Laws Texas 1907, p. 249).

Beversed and remanded.

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144 S.W. 360, 1912 Tex. App. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkerson-v-city-nat-bank-of-decatur-texapp-1912.

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