Opinion
No. 1099.
March 25, 1920.
Appeal from District Court, Erath County; J. B. Keith, Judge.
Action by John and Day Cage against Broad Pearce, a copartnership, and others. From an order denying defendants' plea of privilege to be sued in county of their residence, defendants appeal. Reversed, with directions to enter judgment changing the venue.
Snodgrass, Dibrell Snodgrass, of Coleman, for appellants.
J. A. Johnson, of Stephenville, for appellees.
Appellees, John and Day Cage, filed this suit in the district court of Erath county against Broad Pearce, a co-partnership, and also against Walter Gann, Harry Hubert, Arthur E. Young, W. C. Day, and R. I. Brown, all residents of Coleman county, for $2,500 and interest, alleged to be the balance due upon a lease contract of certain lands in Erath county, and claiming a pasturer's or agister's lien upon the cattle pastured thereon.
Appellants filed their plea of privilege to be sued in Coleman county in proper form, and this appeal is from the judgment of the trial court overruling the plea; appellants' contention being that article 1830, Vernon's Sayles' Statutes of Texas, governs and precludes plaintiffs from maintaining its action in Erath county (it reads: "No person who is an inhabitant of this state shall be sued out of the county in which he has domicile, except in the following cases") and that the facts of this case do not bring the suit within any exception named.
Appellees urge that the facts of the case bring the cause of action within the twelfth exception thereto, which reads, "Where the suit is for the foreclosure of a mortgage or other lien, in which case suit may be brought in the county in which the property subject to such lien, or a portion thereof may be situated," and that they had a lien upon the cattle placed upon the lands by appellants by virtue of article 5664, Rev.Civ.Statutes of Texas, which reads:
"Proprietors of livery or public stables shall have a special lien on all animals placed with them for feed, care and attention, * * * for the amount of the charges against the same; and this article shall apply to and include owners or lessees of pastures, who shall have a similar lien on all animals placed with them for pasturage."
The test of whether appellees had a lien upon the cattle lies within a proper construction of this statute and its application to the facts.
The parties to this suit agreed:
"That the defendants under their contract with John and Day Cage went into possession of the lands leased March 1, 1917, and remained in possession until July 1, 1918, and that they had exclusive possession of the lands during that time."
There was no lien reserved by the contract; so, if appellees had a lien, it is by virtue of the statute, and it provides for a lien on all animals placed with the owners or lessees of pastures for pasturage. Under the agreement above quoted, instead of these cattle having been placed with any owner or lessee for pasturage, the appellants themselves were the lessees of the pasture and in possession and control thereof as well as in full possession of their cattle; so it seems clear that appellees have no lien under the facts of this case.
It is suggested by appellees that the only question properly before this court is whether the lease in question was an assignment of the rights of plaintiff under the original lease from Floyd Thompson or a subletting by the plaintiffs to the defendants — citing Davis v. Vidal, 105 Tex. 444, 151 S.W. 290, 42 L.R.A. (N.S.) 1084.
The question here is one of venue only, or where should the appellees have brought their suit, and not whether they can maintain it against these defendants or appellants, as was the question decided in the cited case; so it follows from what has been said that the facts of this case do not confer a lien upon the cattle in favor of appellees; therefore the exception to the statute providing that parties shall not be sued out of the county of their domicile does not obtain, and it further follows that the trial court erred in overruling appellants' plea of privilege.
Accordingly the judgment of the trial court is reversed and set aside, and that court is directed to enter judgment changing the venue therein to the district court of Coleman county, and, further, the clerk of the district court of Erath county is directed to prepare a transcript of said cause and transmit the same together with the original court papers to the district court of Coleman county, Tex