Sinton State Bank v. Tyler Commercial College , 1921 Tex. App. LEXIS 361 ( 1921 )

By force of the statute (article 1903, Vernon's 1918 Supplement) the plea of privilege was prima facie proof of a right in appellant to have the case transferred to San Patricio county for trial. In an effort to discharge the burden which therefore rested upon it to show that it was entitled to maintain its suit in Smith county notwithstanding said plea (Insurance Co. v. Robinson, 202 S.W. 354; Bank v. Sanford, 228 S.W. 650), appellee made the allegations referred to in the statement above, and at the hearing of the plea proved (1) that its contract with Gerdes was made in Smith county, and (2) that by a telegram sent to it at Tyler in reply to one it sent to appellant at Sinton the latter agreed to pay the check. It is plain, we think, that such proof did not show the case to be within any of the exceptions invoked to article 1830, Vernon's Statute, declaring that —

"No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile."

The foundation of appellee's cause of action against appellant was not fraud or trespass on its part, but was its promise to pay the check. As that promise was made in San Patricio county, when appellant delivered the telegram to the telegraph company at Sinton for transmission to appellee at Tyler, it is clear no part of appellee's cause of action against appellant arose in Smith county. For anything appearing in the record to the contrary, the connection appellant had with the transaction between appellee and Gerdes was not other than the sending of that telegram in reply to the one appellee sent it.

The judgment will be reversed, and the cause will be remanded, with instructions to the court below to order the cause transferred to the justice court of precinct No. 1, San Patricio county, for trial, as provided in article 1833, Vernon's Statutes. McKay v. King-Collie Co., 228 S.W. 991.