Ketner v. J. M. Radford Grocery Co. , 1927 Tex. App. LEXIS 861 ( 1927 )

Appellee was plaintiff below and appellants were defendants below. They will be so designated in this opinion. Plaintiff sued six defendants in the district court of Taylor county upon a promissory note. The defendants Gay McGlaun and W. H. Graham filed pleas of privilege in statutory form to be sued in Scurry county, the county of their residence. The defendant J. B. Adams filed a plea of privilege in statutory form to be sued in Dawson county, the county of his residence. The other defendants filed no pleas of privilege. The plaintiff controverted the pleas of privilege, alleging that exception No. 5 of article 1830, Rev. St. 1911, (now article 1995 [Rev. St. 1925]) obtained in the case, because the note sued upon was a written obligation payable in Abilene, Taylor county, Tex. The defendants, who had filed pleas of privilege, replied to the controverting affidavit, alleging in substance that when they executed the instrument sued upon the same was payable at the First National Bank of Snyder, Tex.; that said note was executed by them for the purpose of enabling J. E. Ketner, one of the defendants, to borrow money from an individual in Snyder; that thereafter Ketner drew lines through the provision of the note with regard to the place of payment and substituted therefor Abilene, Tex., without the knowledge, acquiescence, or consent of said defendants, and with the knowledge, acquiescence, and consent of the representative and agent of the plaintiff.

Upon a trial of the plea of privilege matter the plaintiff introduced in evidence the note declared upon and rested its case. The defendants then placed witnesses upon the stand, who testified to the facts substantially as pleaded in their reply to the controverting affidavit. At the conclusion of the evidence the court overruled the pleas of privilege, and the only question before this court is the action of the trial court in overruling these pleas.

Plaintiff's right to maintain this suit in Taylor county must rest upon the ground alleged by it in its controverting affidavit; namely, that the defendants executed an instrument in writing performable in Taylor county. Its controverting affidavit was not proof of anything, but was merely a pleading entitling it to make proof of the facts therein alleged. The burden was on it to make a prima facie showing that the defendants had contracted in writing to pay the note in Taylor county. To meet this burden the plaintiff introduced only the note. No witness was placed upon the stand by it, nor were any circumstances introduced in evidence raising the question as to whether or not the defendants executed this note. In our opinion it was not necessary for the defendants to introduce any evidence, nor was it necessary for them to file any reply to the controverting affidavit. The plea of privilege was a denial under oath that they executed the instrument declared upon. On the trial of a question of venue a proper plea of privilege containing the statutory requirements is a plea of non est factum, the effect of which is to rob the instrument relied upon of any probative force whatever to prove its own recitals as to venue, and evidence aliunde must be offered to make a prima facie case of the execution of the instrument. That evidence was wholly lacking in this case, and it became the duty of the trial judge, when the plaintiff rested, to enter an order transferring the venue of this cause.

Plaintiff insists that an issue of fact was raised by the evidence as to whether or not defendants executed the note in controversy. We cannot assent to this proposition. Plaintiff made no prima facie case. It introduced nothing except a predicate for the introduction of evidence, if any it had. It is of no consequence that defendants did not object to the introduction of the note. It had been robbed of its probative value on the issue involved, and failure to object to its introduction did not restore that value.

But, if there should be any doubt as to the correctness of the views which we have announced above, it nevertheless seems to us that there could be no doubt as to the correct disposition to be made of this case, because the reply to the controverting affidavit was a plea of non est factum, and such reply, together with the plea of privilege, certainly robbed the note of all of its probative value to prove itself. The uncontradicted testimony showed that this note had been changed by Ketner after appellants signed it, and without their knowledge, acquiescence, or consent. This pleading and evidence would certainly necessitate the sustaining of the pleas of privilege.

Plaintiff insists that since it has venue of the defendants who did not file pleas of privilege and has acquired some character of vested right to maintain a suit in Taylor county against such defendants, that it would be inequitable to transfer the entire cause to Scurry county. We know of no rule of law that would permit plaintiff to sue three of the makers of a note in Taylor county and the other three in Scurry county. There can be but one final judgment on this note, and, as we understand the law, the case cannot be transferred on plea of privilege in part, but must be transferred as a whole. Hickman v. Swain, 106 Tex. 431,167 S.W. 209.

In the case of Rutledge v. Evans (Tex.Civ.App.) 219 S.W. 218, cited by appellee in its motion for rehearing, the cause of action was severable. In this case there can be no severance.

The evidence probably raises a question as to whether or not the defendant Adams ratified this transaction. An order transferring the case to Dawson county, the residence of Adams, might indicate that the issue of ratification was resolved against plaintiff. It is, therefore, our order that the judgment of the trial court be set aside, and that the case be remanded, with instructions to transfer this cause to the district court of Scurry county, Tex., in accordance with the prayer of the pleas of privilege of defendants McGlaun and Graham.