Where a cross-action has been filed asking for affirmative relief as to matter directly connected with the subject matter of the original cause of action, after the cross-action has been filed it is too late for the plaintiff to dismiss the original suit and object to having the issues of the cross-action determined in the forum of the original suit, rather than in the forum of the residence of the defendant in the cross-action. Anderson, Clayton Co. v. State, 122 Tex. 530, 62 S.W.2d 107; Bailey v. Federal Supply Co., supra; Fairbanks v. McAllen, Texas Civ. App., 170 S.W.2d 581, writ of error dismissed; Service Drilling Co. v. Woods, Texas Civ. App., 120 S.W.2d 608. This suit, as shown by the certificate, was filed January 7, 1947.
The link between the Texaco cause and the Forney cause is sufficiently close to bring the entire suit under Subdivision 4. Similarly, once venue is properly established in Harris County as to Texaco and Forney, venue of all cross-actions, counter-claims and claims for indemnity and contribution filed by the several defendants herein can properly be maintained in Harris County. Cape Oil Company v. Williams, 427 S.W.2d 122 (Tex.Civ.App. — Tyler, 1968, no writ); Downing v. Laws, 419 S.W.2d 217 (Tex.Civ.App. — Austin, 1967, writ ref'd n.r.e.); Luse v. Union City Transfer, 324 S.W.2d 935 (Tex.Civ.App. Waco 1959, writ dism'd); Service Drilling Co. v. Woods, 120 S.W.2d 608 (Tex.Civ.App. — Austin 1938, no writ). Jeffco's second point of error complains of the action of the trial court in sustaining an objection to a hypothetical question propounded to Jeffco's expert witness.
Likewise we hold that the cross-action brought against Laws and Downing is properly maintainable in Travis County, Texas because it arises out of the same transaction and involves the same issues of fact and law as the original suit. Luse v. Union City Transfer, 324 S.W.2d 935 (Tex.Civ.App.Waco 1959, writ dism'd); Service Drilling Co . v. Woods, 120 S.W.2d 608 (Tex.Civ.App.Austin 1938, no writ). In his plea of privilege appellant plead the Statute of Frauds, Tex.Rev.Civ.Stat.Ann. art. 3995, and further alleged, 'for the purpose of this Plea of Privilege, this defendant would show the court that the subject matter of this suit does not present an enforceable action against this defendant in that the alleged contract involved herein fails to meet the standards prescribed by the statute of frauds * * * which statute this defendant now expressly pleads.'
In determining the question of venue, the trial court does not consider questions as to defect of parties. This question cannot properly arise until after the question of venue is finally and definitely terminated Tide Water Oil Company v. Bean, Tex. Civ. App. 118 S.W.2d 358; Service Drilling Co. v. Woods, Tex. Civ. App. 120 S.W.2d 608; Lally v. State, Tex. Civ. App. 138 S.W.2d 1111; Gallagher v. Gallagher, Tex. Civ. App. 153 S.W.2d 541. The appellant met the burden placed upon him to sustain venue in Shackelford County by alleging and proving a valid lien against property situated in that county. Construing his petition as a whole, it is shown thereby that the suit is one to foreclose a lien on property situated in Shackelford County.
Again, in the Reagan County case, Sections 5, 27 and 29a of Article 1995, Vernon's Ann.Civ.St., were in issue; these are "permissive" sections and must yield to the mandatory provisions of Section 14. Appellants also cite Service Drilling Co. v. Woods, Tex. Civ. App. 120 S.W.2d 608; that case is not in point but falls within the rule of construction invoked in the Reagan County case on the three points summarized above. Lottman v. Cuilla, Tex.Com.App., 288 S.W. 123, also cited by appellants, has no application; that case involved contribution between joint tort-feasors and was controlled by the three principles summarized above from the Reagan County case.