Morris v. Runnells , 12 Tex. 175 ( 1854 )

Wheeler, J.

It is insisted for the plaintiff in error, that the Court had not jurisdiction to try the case in the county of the residence of the defendant, because the land, the subject matter of the sale which it was proposed to rescind, was situated in a different county.

There was no objection taken to the jurisdiction of the Court, by plea or exception. And we have heretofore decided, that the right of the defendant to be sued in a particular county, being a question of local jurisdiction merely, is a personal privilege, which the defendant, if he think proper, may waive ; and which, by pleading to the action without objecting to the jurisdiction, he will be deemed to have waived. (11 Tex. R.) Besides, the present is not properly an action for the “ recovery of land, or damages thereto.” It is a suit, the primary object of which, and the object attained, was the rescission of a contract. Land, it is true, was the subject matter of the contract. But there can be no more reason for requiring the suit to be brought in the county where the property was situated, in this case, than in a case where the object of the suit is the rescission of a contract relating to any other species of property. The case does not come within the language, or apparent intention of the statute. (Hart. Dig. Art. 667.) And the objection, if taken in proper time, ought not to have prevailed.

The defendant, by expressly admitting in his answer the giving of the receipt in question, dispensed with the necessity of proof by the plaintiff of that fact; and took upon himself the burden of proof as to the purpose for which he alleged it-to have been delivered to the plaintiff.

It does not appear what was the character of the protest spoken of. The receipt was not commercial paper, and was not the subject of a notarial protest for non-acceptance, evidenced by the act of the notary. Bnt the record is evidently incomplete in not containing the protest and deposition referred to, and properly constituting a part of the statement of facts. Every presumption is in favor of the judgment". And in the absence of the protest and deposition in question, it would not be unreasonable to suppose that, taken in connection, they may have, afforded competent evidence of the due presentation and non-payment of the receipt.

But it will suffice to dispose of the objection to the ruling of the Court admitting the evidence in question, that it was rendered immaterial by the other evidence in the case. The admission of the defendant that the receipt was worthless, dispensed with the necessity of proving its presentation and nonacceptance or non-payment, which would have been but evidence of the admitted fact. But the admission made out the case for the plaintiff on this point, independently of the evidence objected to. The plaintiff was entitled to a verdict without it. Its admission, therefore, can have operated no injury to the defendant, and cannot afford a ground for reversing the judgment. The judgment is therefore affirmed.

Judgment affirmed.