Citation Numbers: 160 S.W. 657
Judges: FLY, C.J.
Filed Date: 10/29/1913
Status: Precedential
Modified Date: 1/13/2023
Appellee sued John Newman, Earl Talley, A. E. Arnold, J. O. *Page 658 McKinney, C. Vollmert, and M. S. Arnold in Harris county on certain promissory notes alleging that they resided in Gray county, Tex.; that the notes were jointly and severally executed by appellant; and that a chattel mortgage on certain property was given by them to secure the payment of the notes. Appellants pleaded their privilege to be sued in Gray county. The court rendered judgment for appellee for the amount of the promissory notes and foreclosed the mortgage lien on the personal property.
Appellants admitted in their testimony the execution of the three notes, in each of which notes it was provided that it should be paid in Gray county, but, "if this note is not paid at maturity, then it shall become due and payable at the office of the Buffalo Pitts Company at Houston, Harris county, Tex." The notes were not paid at maturity. The venue was properly laid in Harris county, and the court correctly overruled the plea of privilege.
Appellants are in no condition to claim fraud, accident, or mistake, because they filed no pleadings upon which to base such claim. Their only pleading was their plea of privilege, and they should not have been permitted to introduce any testimony whatever, except in support of that plea.
The case of Stacy v. Ross,
The judgment is affirmed.
There being no plea of fraud or misrepresentation, evidence of such fraud or misrepresentation cannot form the basis for a decision by the trial court or this court. The allegations must be broad enough to permit proof, and evidence not based upon allegations cannot sustain a judgment. This rule is uniform and has been given strict adherence. Young v. Lewis,
The motion for rehearing is overruled.