Ferguson v. Fain , 1911 Tex. App. LEXIS 758 ( 1911 )

HALL, J.

The appellant filed his bill in the district court of Lubbock county to enjoin the execution of a judgment which had been rendered against him in the justice court of Denton county on the 28th day of January, 1901, in a suit wherein appellant was defendant and Mrs. Mattie Fain, appel-lee herein, was plaintiff. Execution was issued on said judgment and placed in the hands of W. H. Flynn, sheriff of Lubbock county. As grounds for the injunction, appellant alleges that the justice court judgment in question had been fully settled and, paid off in the settlement of other litigation subsequently had between the same parties in the district court of Denton county, and that appellee, Mrs. Fain, had promised to release the judgment in the justice court, and had failed to do so. The prayer was for temporary injunction, and that upon a final hearing injunction be made permanent. Ap-pellee, Mrs. Fain, filed her plea of privilege, alleging her residence to be in Denton county, that the defendant Flynn was merely a formal party to the suit, and praying that the cause be transferred to the district court of Denton county. This plea was sustained by the evidence introduced, and no testimony was introduced by appellant in opposition thereto. The plea was overruled by the court. The question of venue was also raised by exception and plea in the motion to dissolve. This was also overruled by the court and the exceptions reserved by her. Upon a trial before the jury, there was a verdict and judgment for appellees dissolving the temporary injunction, from which appellant has appealed the case to this court.

[1] The appellee, Mrs. Fain, by cross-assignments of error, properly filed in the trial eourt, insists that her plea of privilege should have been sustained, and the cause transferred to the district court of Denton county. If her contention is correct, then this court should not pass upon any of the assignments of error presented for our consideration in appellant’s brief. We have carefully investigated the issue raised by this assignment, and have concluded that the same • should have been sustained, and the cause transferred to Den-ton county. Our venue statute, governing the case, is as follows (Sayles’ Civil Statutes, art. 1194): “No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile except in’ the following eases, to wit.” Subsection 17, under this article, is as follows: “When suit is brought to enjoin the execution of a judgment or to stay proceedings in any suit in such case suit shall be brought in the county in which such judgment was rendered or in which suit is pending.” Subsection 27 of the Same article provides: “Whenever in any law authorizing or regulating any particular character of action the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

In the case of Parsons et al. v. McKinney, 133 S. W. 1084, in which a writ of error was denied by the Supreme Court, Chief Justice Pleasants said: “Subdivision 17 of article 1194 and article 2996, Sayles’ Civil Statutes 1897, apply only when the suit is to restrain the execution of a judgment because of some infirmity in the judgment or the writ or of some equity which has arisen since the rendition of the judgment, which should prevent its enforcement.” It would seem from the language of the authorities hereinafter cited that the courts of this state have construed subsection 17 to be inapplicable where the purpose of the action was to enjoin the levy of the execution upon the property of some one who was not a party to the judgment sought to be enjoined, or where the purpose of the suit was to protect exempt property and the like, and the injunction sought was merely auxiliary to the main purpose of the suit. This, however, is a direct proceeding wherein appellant seeks to cancel the judgment for the reasons arising since its rendition, and to have the same declared satisfied and void, and no other relief is sought by his petition. The fact that the sheriff of Lubbock county in whose hands the execution was placed has been made a party to the suit does not affect the question. In our opinion the residence of the parties to the suit is immaterial, because the subsections 17 and 27 fix the venue in the county where the judgment was rendered, regardless both of the parties or their domicile. The real issue is between appellant and ap-pellee, Mrs. Mattie Fain, to declare the judgment satisfied, and the sheriff is merely a formal party to the proceeding, and appellee, Mrs. Fain, should not be required to litigate matters presented by appellant’s bill in Lubbock county, by reason of the residence of the sheriff there, who is a party to the suit solely because of his official position. We think the subdivision of the article in question was intended to apply to suits of this character. Lyons Bros. v. Corley, 135 S. W. 603; Parsons v. McKinney, 133 S. W. 1084; Adoue v. Wettermark, 22 Tex. Civ. App. 545, 55 S. W. 511; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Winnie v. Grayson, 3 Tex. 430. In our investigation we find that Iowa and Missouri have venue statutes • similar to ours with reference to enjoining the execution of judgments, and the courts of those states have construed their respective statutes in line with the construction we place upon our statute in this case. See Phelan v. Johnson, 80 Iowa, 727, 46 N. W. 68; Anderson v. Hall, 48 Iowa, 346; Grattan v. Matteson, 51 Iowa, 622, 2 N. W. 432; State ex rel. Fenn v. Riley, 127 Mo. App. 469, 105 S. W. 696.

Because of the error of the court in overruling the exception raising the issue of venue, the judgment is reversed and the cause remanded, with instruction that the district court of Lubbock county enter the proper order, sustaining said exception and transferring the cause in accordance with the statute, to the district court of Denton county.