In propositions under their assignment that the court erred in overruling their plea of privilege, appellants insist that the suit was not triable in Smith county unless it plainly appeared, and they say it did not, that they had contracted in writing to pay the notes sued upon there. The conclusion of the trial court that they had contracted to pay the notes in Smith county was based on the fact that the notes by their terms were payable there, the fact that Ford conveyed his rights under the contract with Crews to T. W. Halliday, and agreed that T. W. Halliday might "assume and carry out the contract" with Crews, after T. W. Halliday, S.E. Halliday, and H. L. Halliday formed the partnership, and the fact that the partnership afterwards by the letter of May 5, 1920, advised Crews that he might look to them for payment of Ford's indebtedness to him "promptly as per the original contract." The findings of fact on which the conclusion was based are not challenged in any way in any of the assignments in appellants' brief. The conclusion of the trial court was not error, unless it *Page 603 should be said that his inference that the lumber company's undertaking to pay indebtedness Ford owed Crews was the indebtedness evidenced by the notes was unwarranted. McCauley v. Cross, 111 S.W. 790, and authorities there cited. Such an inference clearly was warranted, we think, from the fact that it did not appear that Ford owed Crews any other indebtedness than that evidenced by the notes, and the fact that the lumber company, as found by the court, after writing the letter paid some of the notes and paid interest which had accrued on the principal of others of them which Ford had paid.
It appears from a bill of exceptions in the record that when the cause was called for trial appellants' attorneys announced to the court that they wished to appear only for the purpose of trying the issue presented by their plea of privilege and Crews' controverting plea, and desired that issue to be "finally determined by the court of last resort before they were ready to try the case on its merits." It further appears from said bill that appellants "entered an objection to proceeding to trial on the merits, but the court overruled said objection and held that the defendants were not entitled to have the issue of venue finally determined before answering to the merits of the case, and forced the defendants into trial, to which action of the court the defendants then and there excepted."
The bill of exceptions was approved by the trial judge with a qualification as follows:
"The pleadings clearly showed that a trial upon the plea of privilege involved a full trial upon the facts as to the merits of the case. I therefore ruled that I would hear the testimony on the plea of privilege and upon the merits together, and that after hearing testimony would render judgment, first, upon the plea of privilege, and, after judgment upon that issue, if proper to do so, would render judgment upon the merits, and directed the trial to proceed. After hearing the evidence, I was of the opinion that the plea of privilege should be overruled, and so ordered, and also rendered judgment upon the merits. There was no objection by defendants to proceeding to trial to the effect that they were not ready upon the facts for want of testimony to meet the issues presented."
We do not think the action of the trial court was erroneous on the facts stated by him, and, if it was, it does not appear the error operated to appellants' prejudice. Appellee, as correctly determined by the court, had a right to have the cause tried in Smith county, and, so far as anything in the record shows to the contrary, appellants were not injured by the action of the court in trying it when he did. The only point decided by this court in the case (Hill v. Brady, 231 S.W. 145), cited by appellants as supporting their contention, was that a party having a right to appeal from a judgment overruling his plea of privilege, and who fails to do so, should be held to have waived the right to have the action of the trial court in overruling his plea reviewed on an appeal from a judgment on the merits of the case.
The contention in appellants' brief that the evidence showed that Crews "was dealing with T. W. Halliday personally," and that the latter "was not authorized to bind H. L. Halliday in any manner," seems to be based mainly on testimony of T. W. Halliday that Ford was indebted to him, and transferred the mill property to him to secure the indebtedness, testimony of Ford that the negotiations resulting in his transfer of said property to T. W. Halliday were between him and T. W. Halliday alone, and that H. L. Halliday had nothing to do with same, testimony of Crews that his negotiations were with Ford and T. W. Halliday, and not with H. L. Halliday personally, and testimony of H. L. Halliday that he did not authorize T. W. Halliday to act in the matter for the Halliday Lumber Company. Perhaps if the testimony referred to was all the trial court had a right to look to, the contention should be sustained. But it appears in the record that there was other testimony, part of which is referred to below, proper for the court to consider in connection with that issue, and we think it was sufficient as a predicate for his finding. It appeared without contradiction in the testimony that the "T. W. Halliday Lumber Company" was a copartnership composed of T. W. Halliday, H. L. Halliday, and S.E. Halliday. H. L. Halliday testified that the partnership "was organized for purpose of buying and selling timber," and that he "left T. W. Halliday to transact all of the business for the T. W. Halliday Lumber Company." By the terms of the transfer from Ford to T. W. Halliday the right of the latter to assume the contract of the former with Crews and to use the timber as provided in that contract depended on Crews agreeing he might do so. It appears from Crews' testimony that after he verbally so agreed with T. W. Halliday he received the letter of May 5, 1920, written on the letter head of the lumber company and signed in its name, in which further time was asked in which to make payments stipulated for in the contract between Ford and Crews, and in which Crews was assured he could "look to us for the payments, and we will see that you get them promptly as per the original contract." Crews further testified he granted the extension asked for by the lumber company. Ford testified that the lumber company "cut the timber" he purchased of Crews; and it appeared from other testimony that a part, at least, if not all the lumber manufactured from the timber was shipped and sold in the lumber company's name. *Page 604
The remaining contention presented by assignments in appellants' brief is that the court erred when he permitted Crews, over their objection, to dismiss his suit so far as it was against Ford, on the ground, it appears from a recital in the judgment, that he had not been cited to answer the suit and was a bankrupt. In support of the contention it is insisted that the transfer by Ford to T. W. Halliday operated as a mortgage merely. It is argued that Ford "still has an equity in the timber involved," and therefore was a necessary party to the foreclosure awarded Crews. "The point is," appellants say in their brief, "that Ford has not been divested of his equity, and that the purchaser under the order of sale would not acquire Ford's interest, and therefore the other defendants are prejudiced because the foreclosed property could not bring its full value." The contention is overruled. The foreclosure was not against Ford's interest in the timber, but against the interest alone of appellants therein. The fact that their interest will not sell for as much as their and Ford's interest combined would sell for is not a matter appellants have a right to complain of. They were not seeking relief of any kind against Ford in their pleadings, and therefore were not concerned in this suit about any interest owned by him in the timber.
We think there is no error in the judgment. Therefore it is affirmed.