DocketNumber: No. 5335.
Citation Numbers: 167 S.W. 1
Judges: RICE, J.
Filed Date: 4/15/1914
Status: Precedential
Modified Date: 1/13/2023
I do not concur in the view expressed in the majority opinion herein that appellants' plea of privilege to be sued in the county of their residence should be sustained. I think that the justice court in Coleman county had jurisdiction as to them by virtue of subdivision 5 of article 1830, R.S. 1911, which reads:
"Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile."
The obligation sued on was to be performed in Coleman county, and it is conceded that as to Hager the suit was properly brought in that county. The only judgment asked was the enforcement of that contract; that is to say, judgment against Hager on the note and foreclosure of the mortgage on the property described in that contract. Appellants, being subsequent mortgagees, were proper parties to the suit. They took their mortgage with constructive knowledge of appellee's prior mortgage, and were charged with notice, as a matter of law, that they could properly be made parties to a suit to enforce the prior mortgage. No personal judgment is sought against them. The only thing that appellee asks is that they shall do what the law says they agreed to do when they took their mortgage, and that is recognize the superiority of appellee's prior mortgage. The judgment in favor of appellee does nothing more than enforce his written contract to which the appellants, for the purpose of the proper enforcement of the same, have voluntarily, to that extent, made themselves parties. Under such circumstances, I do not think that they should be permitted to oust the justice court in Coleman county of its jurisdiction conferred by the contract sued on by claiming that suit must be brought to enforce said contract in the county of their residence. If the contract is not enforced against a subsequent mortgagee, in effect, it is not enforced at all. I do not think that a subsequent mortgagee should be permitted to nullify the statute which gives jurisdiction in the county where the contract is to be performed.
The point in issue in this case was not involved in either of the cases cited in the majority opinion, except the case of Sublett v. Hurst, 164 S.W. 448. I think that the honorable Court of Civil Appeals for the Sixth District fell into error in that case by reason of its failure to consider the facts in the case of Behrens Drug Co. v. Hamilton et al.,
"The asserted lien against the property * * * was ancillary only — an incident merely of the suit upon the note which constituted the basis of the proceedings — and the dependent issue necessarily failed when the only obligor therein was in effect dismissed by appellee's declared election to proceed with the trial without any character of citation or notice to the maker of the note."
In Railway Co. v. McKnight,
The correct judgment was rendered in Sublett v. Hurst, supra, for the reason that the mortgage was void as to Sublett. Burlington Bank v. Marlin Bank, 166 S.W. 499, decided at the present term of this court.
St. L.S.W. Ry. Co. v. McKnight , 99 Tex. 289 ( 1905 )
Drug Co. v. Hamilton McCarty , 92 Tex. 284 ( 1898 )
Burlington State Bank v. Marlin Nat. Bank , 166 S.W. 499 ( 1914 )
Breed v. Higginbotham Bros Co. , 141 S.W. 164 ( 1911 )
Johnson v. Lanford , 52 Tex. Civ. App. 397 ( 1908 )
Sublett v. Hurst , 164 S.W. 448 ( 1914 )
Behrens v. Brice , 52 Tex. Civ. App. 221 ( 1908 )