Higgins v. Frederick

Citations

• 32 Tex. 282

Syllabus

<p>1— S, a resident of Comal county, mortgaged land in Bexar county to F, to secure certain notes. II, a resident of Bastrop county, subsequently bought the land from S. F brought suit in the District Court of Bexar county against H alone, alleging that H had assumed payment of the notes, and praying a general judgment against him on his assumpsit, as well as a foreclosure of the mortgage. H excepted for want of jurisdiction in. the District Court of Bexar county. Held, that the exception was well taken, and should have been sustained; and that the tenth exception to Article 1433, Paschal’s Digest, does not apply to such a case, nor authorize such a suit to he maintained in another county than that in which the defendant resides.</p> <p>2— The tenth exception, just referred to, authorizes suit in the county where the land lies only where the foreclosure of mortgages or lien “ is the apeciñe object of the suitand it would seem that the foreclosure must be the principal cause of action, and not a mere incident to another cause of action.</p> <p>3— In this case, inasmuch as the mortgagor was not made a party to the suit, it cannot be considered as a suit to foreclose the mortgage.</p> <p>4— When the plaintiff’s petition disclosed the fact that the only defendant was a resident of a different county than that in which the suit was brought, it was not necessary that the defendant’s plea to the jurisdiction, founded on that fact, should be sworn to.</p>