Supplemental Opinion on Rehearing. In a venue hearing, the sole issue being whether defendant is suable on the subject matter involved, in the place where the suit is filed, plaintiff's petition becomes "the best and all-sufficient evidence of the nature of the action."
Here, the note referred to in our memorandum opinion was duly set forth in said petition, and attached thereto as an exhibit; the prayer for relief reading: "Wherefore plaintiff prays that the defendant be cited to answer this petition, and that on final hearing plaintiff have judgment against defendant for the balance of principal and interest and attorney's fees due on said installment note dated September 1, 1932, which balance now amounts to the sum of $659.75."
His controverting affidavit also pleaded the note in haec verba, concluding with paragraph 5, viz.: "This court has venue of this suit by reason of the fact that the defendant has executed his contract in writing, namely, the note set out in paragraph 3 hereof, to perform the obligations *Page 877 thereof, in Dallas County, Texas, and by reason of the fact that the note set out in paragraph 3 hereinabove expressly provides that it is payable in Dallas, Texas, all as provided for in Article 1995, Section 5 of the Revised Statutes of 1925."
The opening statement in appellee's brief reads: "All of the appellant's statement of the nature and result of the suit is substantially correct except that part in which it is inferentially asserted that appellee, who was the plaintiff in the court below, sued appellant, who was the defendant in the court below, on a new promise made after the note was barred by limitation. Because the Court might be misled on that point appellee submits the following Statement of the Nature and Result of the Suit: * * *"
Appellee's third counter proposition reads: "The petition of appellee, S. B. Perkins (Plaintiff in the trial court), against appellant, John N. Stewart, can not be construed as alleging that the note sued on wasbarred by limitation and that after it was barred the maker had made anew promise to pay and the suit was on the new promise." (Italics ours)
Appellee's concluding argument of his reply brief includes these statements and admissions: "Appellant offered no proof as to the new promise except the allegation in appellee's petition that at the time appellant remitted a payment `he executed in writing a new promise to pay the balance due on said note in January, 1939.' It is true appellee alleged that there was a new promise to pay the balance due on the note,but appellee's suit was on the note itself. He alleged that at the time of the filing of the suit there was a balance due on said note amounting to $599.78, and that there was also an attorney's fee of $59.78 due according to the terms of said note. His prayer was that he have judgment for the balance of principal, interest, and attorney's fees due on said installment note. * * * The testimony offered by appellant under his plea of privilege certainly does not prove a release of the note and a substitution therefor of a new contract." (Italics ours)
Plaintiff introduced in evidence on the hearing, his petition, controverting affidavit, and aforesaid note, which, he contends, by its terms and method of payment, was not barred by any appropriate statute of limitations.
Article 2007, R.C.S., Vernon's Ann.Civ.St. art. 2007, requires that the controverting plea in question shall be under oath, "setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending"; the affidavit just referred to becoming plaintiffs replication to defendant's plea of privilege, and the only pleading that may be looked to in determining the venue issues sought to be raised. Grogan-Cochran Lumber Co. v. McWhorter, Tex. Civ. App.4 S.W.2d 995; Grayson v. Cate, Tex. Civ. App. 95 S.W.2d 194. It is there specifically alleged that plaintiff's claim is upon a written demand, payable in said county, and not upon a new promise, of which he makes no mention. Plaintiff reiterates throughout this record that his action is upon the note, yet defendant, in his zeal to prevail, introduces in evidence four lines of plaintiff's petition and seeks to expand them into the entire cause of action; first, by demonstrating prematurely that the note is barred, and then, that such "new promise" or novated transaction is not payable in Dallas County. Defendant cannot so fix the character of plaintiff's action, which plaintiff states "was on the note itself." No mention being made in the controverting plea of a "new promise," or issue raised thereon by proof, such allegations are mere surplusage and, in effect, pass out of the case.
If, perchance, before trial on the merits, plaintiff should amend and declare upon a "new promise," a new and independent cause of action would be presented, subject, of course, to defendant's further venue plea. Burrage v. Hunt Production Co., Tex. Civ. App. 114 S.W.2d 1228. In event of such a changed situation, the authorities and reasoning of Chief Justice BOND would be quite useful.
Appellant's motion for rehearing is overruled.