On Motion for Rehearing. The ground urged in the motion, to wit, that this court "erred," quoting, "in holding that the appellee bank was not estopped from setting up the statute of frauds, as the appellee bank acted in a way to mislead the appellant bank and cause it to advance money which it would not have done had not the appellee bank misled it," indicates that appellant misunderstood the opinion disposing of the appeal. This court did not undertake to determine that appellant could not, because of the statute of frauds or for any reason, maintain a suit against appellee in Wood county on its promise to repay to appellant money it paid to Sanford at appellee's request. This was not that kind of a suit, but was a suit on the drafts and against appellee as the acceptor thereof, and therefore such a question was not presented by the appeal. On the trial of the plea it was agreed that the fact was "that," quoting from the record, "the promise to pay set forth in plaintiff's petition and in plaintiff's controverting plea was an oral promise." That, in legal effect, when considered in connection with the pleadings of the parties, was an agreement by appellant that appellee was not a party to the contract evidenced by the drafts, and therefore not a proper party to its suit on the drafts. What this court held was in conformity to that *Page 655 agreement, to wit, that appellee, not having accepted the drafts in writing, was not a party to same and therefore was not a proper party to appellant's suit on same, and hence could not, over its objection interposed in the way the statute points out, be sued on the drafts in Smith county, where it did not have a domicile and transact business, merely because the drawer of the drafts resided and was suable there.
We would not think it necessary to say more in disposing of the motion, but for the view of the question taken by Associate Justice HODGES in his dissenting opinion that, if the pleadings of the plaintiff show a defendant who resides in a county other than that in which the suit is brought to be a proper party thereto, they are conclusive of the fact that he is, in the absence of pleadings by him attacking the allegations of the plaintiff showing him to be such a party on the ground that they are false and made for the fraudulent purpose of sustaining jurisdiction the court in fact does not possess over his person. As we understand the rule, it is that the facts and not what the plaintiff alleges to be the facts, which are to be looked to in determining the question made by a plea of privilege. Bank v. Gates, 213 S.W. 720; Hilliard v. Wilson,76 Tex. 180, 13 S.W. 25; Bledsoe v. Barber, 220 S.W. 369. And when a defendant interposes such a plea in conformity to the requirements of the statute, I he is entitled as a matter of law to have the cause of action asserted against him transferred to the county where he resides for trial, unless the plaintiff by a controverting plea not only alleges, but by testimony proves, to the contrary. Vernon's Statutes, art. 1903, as amended April 2, 1917 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903); Witt v. Stith, 212 S.W. 673.
The motion is overruled.