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97 S.W.2d 982

Lanford v. Lovett

Court of Appeals of Texas

Decided October 28, 1936

Court of Appeals of Texas · decided 1936-10-28

Key passage — most relied on by later courts

““The rule has been established in this state that in order to sustain venue in a suit upon a promissory note in the county of the forum, upon the ground that the defendant had bound himself in writing to pay the obligation in that county, the burden is upon the plaintiff to not only put in evidence the note sued on, but he must go further and make affirmative proof of the due execution of the obligation. In the absence of such proof, the defendant is entitled to claim his privilege. Berry v. Pierce Petroleum Co., 120 Tex. 452 , 39 S.W.2d 824 ; City of Dilley v. Blank, Tex.Civ.App., 95 S.W.2d 732 . In this case appellees, upon whom that burden rested, failed to prove execution of the note sued on and put in evidence, and therefore the court erred in overruling appellants’ plea of privilege.””

quoted by 1 later decision, including Lufkin Nursing Home, Inc. v. Colonial Investment Corp.

Relies on Berry v. Pierce Petroleum Corporation

Good law ✅— No negative treatment on recordhow we know

Decided 1936-10-28

How this case has been cited

Cited by 8 later decisions — most recently February 1968

8 state decisions

401936194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

SMITH, Chief Justice.

¶1In this suit, instituted in Hidalgo county, the trial court overruled appellants’ plea of privilege to be sued in Willacy county, upon the ground that the cause of action was founded upon a promissory note payable in the county of the forum.

¶2The plea of privilege, as well as ap^ pellants’ controverting affidavit, was in due form.

¶3Upon the hearing of the matter of privilege, appellees introduced the note sued on, and, without proving the due execution of the obligation, rested their case on that evidence alone, and in that state of the case the court overruled the plea of privilege. Appellants appealed.

¶4The rule has been established in this state that in order to sustain venue in a suit upon a promissory note in the county of the forum, upon the ground that the defendant had bound himself in writing to pay the obligation in that county, the burden is upon the plaintiff to not only put in evidence the note sued on, but he must go further and make affirmative proof of the due execution of the obligation. In the absence of such proof, the defendant is entitled to claim his privilege. Berry v. Pierce Petroleum Co. 120 Tex. 452, 39 S.W.(2d) 824; City of Dilley v. Black (Tex.Civ.App.) 95 S.W.(2d) 732. In this case appellees, upon whom that burden rested, failed to prove execution of the note sued on and put in evidence, and therefore the court erred in overruling appellants’ plea of privilege.

¶5*983Confessing error, appellees have •moved that at this time this court reverse the judgment and remand the cause for a new trial of the matter of privilege. On the other hand, appellants have also moved for reversal, but pray for rendition of judgment transferring the cause to Wil-lacy county. Since appellees confess the error, and both parties have moved for reversal, we have concluded to grant that relief and proceed to a disposition of the appeal at this time.

¶6To that end we have concluded that in the circumstances justice will be better served by remanding the cause, in order to enable appellees, if they can, to take the one simple additional step essential to sustain venue. This action is suggested, if not made obligatory, by ample authority. City of Dilley v. Black, (Tex.Civ.App.) 95 S.W.(2d) 732, and authorities there cited.

¶7The judgment is reversed and the cause remanded.

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