
    THOMASON v. ARENDT et al.
    (No. 1333.)
    (Court of Civil Appeals of Texas. El Paso.
    May 4, 1922.
    Rehearing Denied June 1, 1922.)
    Venue <®=»22(3)— Sustaining plea of privilege to be sued in county of defendant’s residence held proper.
    In an action against three defendants, two residents in C. county, and one resident in H. county, where the one residing in H. county was neither a proper nor a necessary party, and was fraudulently joined as a party' defendant for the sole purpose of conferring jurisdiction in H. county, sustaining a special plea of privilege of one of' the other defendants to be sued in C. county, where he reside.d, was proper.
    Appeal from District Court, Haskell County; W. R. Chapman, Judge.
    'Action by Y. L. Thomason against Paul Arendt and others. Prom a judgment stating defendants’ plea of privilege to be sued in the county of his residence, plaintiff appeals.
    Affirmed.
    H. G. McConnell, of Haskell, for appellant.
    Granville Jones, of Gainesville, and W. H. Murchison, of Haskell, for appellees.
   HIGGINS, J.

Appellant brought this suit in the district court of Haskell county against his brother, G. W. Thomason, a resident of that county, and against Paul Arendt and E. I. 'Fairy, residents of Cooke county.

Arendt filed plea of privilege to be sued in Cooke county. Controverting affidavit was filed, and upon hearing the plea was sustained, and the plaintiff appeals.

The Thomasons were joint owners of a farm in Cooke county which- G. W. Thom-ason, acting for himself and as agent for Y. L. Thomason, had theretofore leased for two or three years to Arendt. The suit was to recover one-half of an alleged balance due upon the rentals and for damages to the premises. It was alleged that the defendants had excluded the plaintiffs from the possession of the property, and during their possession of the same by their joint acts had damaged it.

It is contended by appellant that the venue was properly laid in Haskell county, by virtue of G. W. Thomason’s residence there. The court found that G. W. Thomason was neither a proper nor a necessary party defendant, and had been fraudulently joined as such for the sole purpose of conferring jurisdiction in. Haskell county. This finding is attacked, but is abundantly supported by the evidence. Indeed, the evidence would scarcely admit of any other conclusion. The evidence adduced shows without contradiction no liability whatever on the part of G. W. Thomason to the plaintiff as was alleged. The falsity of the allegations of the petition fixing venue in Haskell county is shown by the testimony of G. W. Thomason, who was appellant’s own witness. It is in no wise impeached. It shows that G. W. Thom-ason should have been a party plaintiff instead of a defendant.

The court’s finding of a fraudulent joinder of G. W. Thomason as a party defendant is sustained, and upon this finding the plea of privilege was properly sustained.

There is no merit in the suggestion as fundamental error that the plea of privilege was. insufficient.

Affirmed. 
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