
    No. XXX.
    Whiting v. Briscoe and Harris.
    (See .)
    
      Appeal from Harris County.
    
    
      
      .—Whiting- v. Briscoe and Harris, p. 540.
      It is the cherished policy of the law of our State that its inhabitants, only be sued in the county of their domicile, unless otherwise provided by statute; and suits brought in any other place may be met and resisted by plea in abatement. Rev. Stats. 1895, art. 1194; Chevallier v. Williams, 2 T., 239; Campbell v. Wilson, 6 T., 379; Henderson v. Kissam, 8 T., 46; Pool v. Pickett, 8 T., 122; Kinney v. McCleod, 9 T., 78; Finch v. Edmondson, 9 T., 504; Primrose v. Roden, 14 T., 1, 3; Blucher v. Milsted, 31 T., 621; Freeman v. Kuechler, 45 T., 592; Masterson v. Cundiff, 58 T., 472; Carro v. Carro, 60 T., 395; Thomson v. Locke, 66 T., 383; Farris v. Seisfield, 1 App. C., sec. 351; Strohl v. Pinkerton, 1 App. C., sec, 470; Walthew v. Milby, 3 App. C., sec. 119; Fill-man v. Hood, 3 App. C., sec. 191; Chamberlain v. Fox (T. C. A.), U. R. C., 1896. Objection to venue may be by special exception when it appears from the face of the petition that suit is brought in wrong county. Bigham v. Talbot, 51 T., 450; Masterson v. Cundiff, 58 T., 472; Carro v. Carro, 60 T., 395; De la Vega v. League, 64 T., 205; Watson v. Baker, 67 T., 48; Johnson v. Price, 2 App. C., sec. 756; Willis v. White (T. C. A.), U. R. C., 1895; K. C. P. & G. Ry. Co. v. Bermea Land and Lumber Co. (T. C. A.), U. R. C., 1899. The word “domicile,” in statutes regulating venue, means residence. Brown v. Boulden, 18 T., 431; O’Connor v. Cook (T. C. A.), U. R. C., 1894; T. & P. Ry. Co. v. Edmisson (T. C. A.), U. R. C., 1899. Defendant’s residence at the time suit is filed, determines jurisdiction and venue. Whiting v. Briscoe, Dal., 540; Walker v. Walker, 22 T., 331; Faires v. Young, 69 T., 482; Hopson v. Caswell, 13 T. C. A., 492, 494; Kuteman v. Page, 3 App. C., sec. 165. Carrying on a business does not fix the owner’s domicile, and where defendant changes his residence and continues his business suit should he brought in the county where his family resides. Tucker v. Anderson, 27 T., 276; Blucher v. Milsted, 31 T., 621; Strohl v. Pinkerton, 1 App. C., sec. 470. Where a person has resided for a considerable time in one county, it is his residence as to venue until a complete change is made by him. If he is in the act of moving from one county to another or has made the place of his residence uncertain by his acts, he may be sued in either county. Brown v. Boulden, 18 T., 431; Wilson v. Bridgeman, 24 T., 615; Tucker v. Anderson, 27 T., 276; Faires v. Young, 69 T., 482; Blum v. Younger, 2 U. C., 302. As a general rule suits in a justice court should be brought in the precinct where defendant resides, and plaintiff should show that the case is within one of the exceptions when he brings suit elsewhere. Phillio v. Blythe, 18 T., 124; Cowan v. Nixon, 28 T., 230.. To entitle plaintiff to maintain a suit in a county or precinct other than where defendant resides, he should bring his case clearly within one of the exceptions. In such cases, it seems, the court has jurisdiction unless defendant claims his privilege. Masterson v. Ashcom, 54 T., 324; Carro v. Carro, 60 T., 395; Watson v. Baker, 67 T., 48; Landheim v. Muschamp, 72 T., 33; Hilliard v. Wilson, 76 T., 180. Where plaintiff alleges in his petition that defendant resides in another county, he should also allege facts showing that the suit is brought in the proper county. Failure to do so may be cured by amendment. Wilson v. Adams, 15 T., 323; Evans v. Mills, 16 T., 196. The right to be sued in the proper county is a personal privilege and may be waived either by an affirmative act or by failure to claim the privilege at the proper time or in the proper manner. Pool v. Pickett, 8 T., 122; Ryan v. Jackson, 11 T., 391; Morris v. Runnels, 12 T., 175; Gildart v. Grumbles, 22 T., 15; Hays v. Stone, 36 T., 181; Hutchins v. Chapman, 37 T., 612, 614; Beazley v. Denson, 40 T., 416; H. & T. Ry. Co. v. Oram, 49 T., 341, 344; Lewis v. Davidson, 51 T., 251; Masterson v. Ashcom, 54 T., 324; Masterson v. Cundiff, 58 T., 472; De la Vega v. League, 64 T., 205; Kendall v. Hackworth, 66 T., 499; State v. Snyder, 66 T., 687; Watson v. Baker, 67 T., 48; Russell v. T. & P. Ry. Co., 68 T., 646; Bonner v. Hearne, 75 T., 242; Poster v. G. C. & S. F. Ry. Co., 91 T., 631; Aldridge v. Webb, 92 T., 122; Swearingen v. Wilson, T. C. A., 157; Equitable Mort. Co. v. Weddington, 2 T. C. A., 373; Fairbanks v. Blum, 2 T. C. A., 479; Kemp v. Whorton Co. Bank, 4 T. C. A., 648; Marshall v. Spillane, 7 T. C. A., 532; Machine Co. v. Edwards, 9 T. C. A., 537; Meade v. Jones, 13 T. C. A., 320; H. E. & W. T. Ry. Co. v. Granberry, 16 T. C. A., 391; State v. Patterson, 17 T. C. A., 231; Slaughter v. Moore, 17 T. C. A., 233; Pioneer Savings & L. Co. v. Peck, 20 T. C. A., 111; Sealy v. Whitfield, 24 T. C. A., 56; Southern Rock Island Plow Co. v. Pitluk, 26 T. C. A., 327; Walker v. Stroud (T. Sup.), U. R. C., 1837; Bergstrom v. Burns (T. C. A.), U. R. C., 1893. The object of statutes fixing venue is protection and convenience of resident citizens and to this end they should receive a liberal construction in favor of the protection intended. Statutes enlarging area of venue are not given a retroactive effect unless plainly expressed. Finch v. Edmonson, 9 T., 504; Baines v. Jemison, 86 T., 118. Plaintiff will not be permitted to maintain an action and deprive the defendant of his privilege by bringing his suit in one form and changing it by amendment to another, nor by taking a change of venue before answer is filed. Martin v. White, 20 T., 174; Fant v. Kenedy Pasture Co., 29 T. C. A., 530. But he may set up additional causes of action by way of amendment when same does not operate as a fraud on defendant’s privilege. Kendall v. Hackworth, 66 T., 499. Defendant can not be deprived of the privilege to be sued in the proper county by bringing suit against another at a place which is an exception as to the latter and not as to defendant. Hilliard v. Wilson, 76 T., 180, 184; Behrens Drug Co. v. Hamilton, 92 T., 284; R. R. S. & W. Ry. Co. v. Blount, 3 T. C. A., 282; First Nat. Bank v. East, 17 T. C. A., 176; Gresham v. Welsh, 17 T. C. A., 712. Until a new county is actually organized and new officers elected, jurisdictional domicile of its inhabitants remains in parent county. O’Shea v. Twohig, 9 T., 336; Runge v. Wyatt, 25 T. Supp., 291; Lumpkin v. Muncey, 66 T., 311; Baker v. Beck, 74 T., 562; Dodson v. Bunton, 81 T., 655, 657; Ruse v. Bartlett, 1 T. C. A., 335, 339; Henson v. Sackville, 2 T. C. A., 416. Suit to contest right to county office must be brought in district court of the county in which the election was held. Rev. Stats., 1895, arts. 1796-1804g; Calverley v. Shank, 28 T. C. A., 473. Suit to supply lost instrument, should be brought in county where defendant resides. To supply lost records, in county where the instrument was recorded. Rev. Stats., arts. 4594 and 4585; Douglas v. Baker, 79 T., 499. Suit for specific performance should be brought in county where defendant resides, unless contract provides for performance elsewhere. Durst v. Swift, 11 T., 273; Hearst v. Kuykendall, 16 T., 327; Miller v. Thomas, 17 T., 170; Cavin v. Hill, 83 T., 73; McCampbell v. Durst, 15 T. C. A., 522, 530. Suit to compel a county surveyor to perform an official duty should be brought in the county of his residence, though others who are asserting an adverse interest are joined with him. T. Mex. Ry. Co. v. Locke, 63 T., 627; Thomson v. Locke, 66 T., 383, 392. Motion against a sheriff and his sureties for failure to pay over money collected on execution must be made in the court out of which the execution issued. De Witt v. Dunn, 15 T., 106; Griswold v. Chandler, 22 T., 637; De la Garza v. Booth, 28 T., 478; Robinson v. Schmidt, 48 T., 13. Suit by scire facias to revive a judgment must be brought in the court where the judgment was rendered. Waller v. Huff, 9 T., 530; Perkins v. Hume, 10 T., 50; Masterson v. Cundiff, 58 T., 472; Schmidtke v. Miller, 71 T., 103. An action of debt on a judgment may be brought in county where defendant resides. Townsend v. Smith, 20 T., 465; Johnson v. Skipworth, 59 T., 473. The term “cause of action,” as used in statutes regulating venue, means not only the right which plaintiff has, but also any injury thereto, and suit may be brought in county where defendant resides for damage to land in a foreign country. Armendiaz v. Stillman, 54 T., 623; H. & T. C. Ry. Co. v. Hill, 63 T., 381. Attachment suit should be brought in county where defendant resides, though the property to be attached is in another county. Gibbs v. Petree, 7 T. C. A., 526. As space does not permit full notes on the exceptions to the general rule that suit .must be brought in the county where defendant has his domicile, the investigator is referred to the notes on same to the following cases: Exception 1, 9 Texas, 78; exception 2, 6 Texas, 275; exception 3, 13 Texas, 492; exception 4, 4 Texas, 289; exception 5, 11 Texas, 273; exception 6, 3 Texas, 145; exception 7, 9 Texas, 504; exception 8, 62 Texas, 647; exception 9, 18 Texas, 118; exceptions 10, 11 and 12, 9 Texas, 78; exception 13, 56 Texas, 130; exception 14, 5 Texas, 471; exception 15, 13 Texas, 320; exception 16, 32 Texas, 578; exception 17, 3 Texas, 429; exception 18, 61 Texas, 576; exception 19, 4 Texas, 289; exception 20, 5 Texas, 471; exceptions 21 and 22, 66 Texas, 363; exceptions 23, 24, 25 and 26, 50 Texas, 181. As to where injunctions to stay execution must be sued out and made returnable, see note to 2 Texas, 259.
    
   OCHILTREE, Justice.

Briscoe and Harris sued Whiting in the District Court of Harris County, in an action of debt, returnable to the fall term, 1839. Whiting pleaded in abatement that he was at the time of suing out the plaintiff’s writ a citizen of Bastrop County and not a citizen of the county of Harrisburg, and prayed judgment of the court, that they would not take cognizance, etc. The plaintiffs took issue upon the plea and a jury were impaneled to try the issue. The jury returned the following verdict: “We, the jury, find that Samuel Whiting was a resident of the county of Harris on the 14th October, 1839”— which was the date of the writ or citation in this case. The defendant, Whiting, then pleaded the general issue and submitted the case to the jury, who found a verdict for the plaintiffs and a judgment was rendered accordingly. Whiting appealed.

There were several exceptions taken in the course of the trial below; but inasmuch as they were not of sufficient importance Lo attract the further attention of the distinguished counsel whose argument has been submitted to us in this case, we will confine our attention to the point which has been brought before us. It is contended by the counsel for the appellant that the finding of the jury did not answer the issue presented by the plea; that although Whiting may have resided in Harrisburg County on the 14th October, 1839, the date of the issuance of the original writ, that there was an alias writ, issued on the 21st April, 1840, upon which he was served and brought into court to answer at the time when he resided in another county; and inasmuch as the statute requires that in all cases not herein excepted the citizen should be sued in the county in which he resides, that it is the place of residence, at the time of the service of the writ, which determines the jurisdiction of the court over his person. This court is of a different opinion. The - party instituting the suit ascertained the residence of Whiting, and commenced their suit in accordance with law. If Whiting afterwards, for the purpose of evading the jurisdiction, should have left the county in which the suit was instituted, it certainly could not be expected that the plaintiff should be reduced to the necessity of dismissing his suit, for the purpose of instituting another, when a like occurrence might happen. The residence of the party at the time of the institution of the suit determined the jurisdiction, and in this we unanimously concur. Let the judgment of the court below be in all things affirmed with damages, etc.

Affirmed.  