Jones v. Austin , 6 Tex. Civ. App. 505 ( 1894 )

FINLEY, Associate Justice

This suit was brought by M. S. Austin,, in the County Court of Rockwall County, against H. Jones and T. J. Wood, Jr., alleged as composing the firm of H. Jones & Co., and the Rockwall Farmers Alliance, alleged to be a corporation. The basis of the suit was-an account of $242 against H. Jones & Co. in favor of the Rockwall Farmers Alliance, for weighing cotton, which it is alleged had been transferred and guaranteed by the Rockwall Farmers Alliance to the plaintiff, M. S. Austin.

Delivered February 28, 1894.

The defendants Wood and Jones did not reside in the county where the suit was brought, but their codefendant did have its domicile in that county. Wood and Jones plead, in abatement, their privilege to be sued in the county of their residence; and alleged, that the transfer of the account sued on to Austin was without consideration, simulated, a sham, and fraud, done solely for the purpose of conferring jurisdiction upon the court, and ■depriving them of the privilege of being sued in the county of their residence. The court heard evidence on this plea, and overruled it. The evidence upon which the court acted is presented to us in the form of bill •of exceptions, and in our opinion no other conclusion is deducible from it than that the transfer was simulated, and intended solely for jurisdictional purposes. This was a fraud upon the jurisdiction of the court, and the plea should have been sustained, and the cause dismissed as to Jones and Wood.

It is contended here that Jones can not complain of this action of the court, because he did not swear to the plea. The plea was made on behalf of both Wood and Jones, and was duly verified by the affidavit of Wood, who stated that he was cognizant of the facts. This was all that was necessary to make the plea available to both defendants.

The defendants Jones and Wood alone assign error and complain of the judgment rendered below. For the error pointed out, the judgment is reversed and the cause is here dismissed as to appellants Jones and Wood.

Reversed and dismissed.