Opinion
No. 3903.
November 13, 1930.
Appeal from District Court, Dallas County; T. A. Work, Judge.
Action by the Oliver Farm Equipment Company against W. L. Parker. From an order overruling defendant's plea of privilege and refusing to transfer cause, defendant appeals.
Affirmed.
Appellant, W. L. Parker, sued by the appellee, farm equipment company in a district court of Dallas county on a contract covering the purchase by him of certain machinery of the Nichols-Shepard Sales Company, by a proper plea filed in said court at the proper time, asserted a right he claimed to be sued instead in Potter county, where he resided. Appellee controverted the plea by one of its own, in which it alleged that the contract sued upon was in writing and that in it appellant had agreed to pay the sum sued for in said Dallas county, and therefore that it, as assignee of said sales company, was entitled to maintain the suit there by force of exception 5 to the provision in article 1995, R.S. 1925, that "no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile." Said exception is as follows: "If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile." It appeared from the written order (dated May 29, 1928) given by appellant for the machinery, in evidence at the hearing on the pleas, that he was to execute promissory notes payable at the Amarillo National Bank for a part of the purchase price of the machinery. It appeared, further, that on July 3, 1928, he executed notes by their terms payable at their maturity at said bank, as stipulated in said order, but that the notes severally contained a further stipulation as follows: "If this note is not paid at maturity, it (and all other notes of the same series at the option of the holder) shall at once become payable at Dallas, Texas." It was alleged in appellant's said plea that the agreement between him and the sales company was that the notes he was to execute were "to be payable at maturity at the Amarillo National Bank of and at Amarillo, Texas," but that in the drafting of the notes "through error, mutual mistake and misprision the said notes were drafted and drawn to make the same to `at once become due and payable at Dallas, in Dallas County, Texas,' if not paid when due." In his said plea appellant alleged further that the notes were prepared for execution by an agent of the sales company; that he (appellant) executed them believing they had been prepared in accordance with said agreement; and that he did not know they had not been so prepared until this suit against him was commenced September 14, 1929. In its controverting plea appellee denied that the stipulation in the notes for the payment thereof at Dallas, if they were not paid at their maturity, was included therein by mistake, and then alleged that if the charge was true, the notes were in accord with "a new and independent agreement" between the parties, and that appellant executed same with full knowledge of the fact that they contained the stipulation in question. This appeal is from an order of the court below overruling appellant's said plea and refusing to transfer the cause to Potter county for trial.
Robert E. O'Keefe, of Dallas, and J. W. Culwell, of Amarillo, for appellant.
Burgess, Burgess, Chrestman Brundidge, of Dallas, for appellee.
There are no assignments of error in the record sent this court nor anything showing such assignments to have been filed in the court below as required by the statute. Article 1844, R.S. 1925. If such assignments were ever so filed, they not only were not made a part of said record, but they were not copied into appellant's brief as rule 32 for the government of Courts of Civil Appeals required they should be. It has been many times held that when an appellant has failed to comply with said requirements, only errors "apparent upon the face of the record" can be considered by an appellate court. Gladney v. Pate (Tex.Civ.App.) 29 S.W.2d 794; Lawhorn v. Kirkpatrick (Tex.Civ.App.) 26 S.W.2d 658; Dawes v. Irr. Dist. (Tex.Civ.App.) 25 S.W. 907; Yandle v. Mundy (Tex.Civ.App.) 22 S.W.2d 983. Having examined the record without finding an error of that kind, it follows from what has been said that we cannot do otherwise than affirm the judgment