Plaintiff in error sued defendant in error, in the District Court of Parker County, to recover damages for fraud in an exchange of lands.
Plaintiff in error alleged that Allen and Rockwell, as agents of defendant in error, wrote plaintiff in error a letter, addressed to him at his postoffice in Parker County and which he there received, stating that certain lots which defendant in error offered to exchange for land of plaintiff in error were improved lots in Fort Worth, with 32 three-room rent houses, about two years old, nicely papered and painted, a deep well, a wind mill, an electric pump and sewage system, and further stating that defendant in error would trade for plaintiff in error's land, making the guarrantee for 12 months of a total rental from the houses of $50.00 per week as follows: 12 houses at $2.00 per week $24.00, 12 houses at $1.50 per week $18.00, 8 houses at $1.00 per week $8.00; that the letter was written in reply to a letter from plaintiff in error inquiring about the rentals then received for the defendant in error's lots; that plaintiff in error was thereby induced to believe, and did believe as defendant in error intended, that said houses were rented for the aggregate sum of $50.00 per week; that in reliance on the representations in said letter, and other similar representations made outside of Parker County, plaintiff in error conveyed his land to defendant in *Page 507 error and received therefor the conveyance of defendant in error to the Fort Worth lots; that the conveyances were exchanged in Parker County, and, at that time, defendant in error re-affirmed his guaranty relative to the amount of rents to be derived from the Fort Worth lots; that said lots were not renting for $50.00 per week, but had a rental value not to exceed $38.00 per week; that the representations as to the age and condition of the improvements on the Fort Worth lots were false; that the actual market value of the Fort Worth lots did not exceed $15,000; that had the representations made to plaintiff in error been true said lots would have been of the market value of $26,000, which was the market value of plaintiff in error's land, and therefore plaintiff in error sought to recover damages of defendant in error in the sum of $11,000.
Plaintiff in error also joined Allen and Rockwell as defendants, asking judgment against them for $11,000 damages, on averments that they had conspired with defendant in error to deceive plaintiff in error into making said exchange and had written the letter misrepresenting the age and condition of the houses and the rents derived therefrom.
Defendant in error, joined by Allen and Rockwell, filed a plea of privilege to be sued in Nolan County, Texas, averring that when the suit was filed, and since, they were not residents of Parker County, but that defendant in error and Rockwell were residents of, and domiciled in, Nolan County, Texas, and Allen was a resident of, and domiciled in, Irion County, Texas; and that none of the exceptions to exclusive venue in the counties of the residences of defendants existed in said cause. Allen waived his right to be sued in Irion County, upon the case being transferred to Nolan County.
On April 4, 1912, the plea of privilege was heard and sustained by the court, and an order was entered transferring the case to the District Court of Nolan County. On April 27, 1912, the court sustained a motion for rehearing, filed by plaintiff in error, set aside its previous order, and overruled the plea of privilege.
At the time these orders were made, a statement of facts was filed, showing the proceedings and evidence at the hearing of the plea of privilege and of the motion for a rehearing of the order sustaining the plea.
It appears from a copy of the statement of facts, embodied in the transcript, that all the evidence offered by both parties in support of, and against, the plea of privilege consisted of the following:
First: A written contract between plaintiff in error and defendant in error whereby defendant in error agreed to convey to plaintiff in error the Fort Worth lots, and whereby plaintiff in error agreed to convey a certain 4428 acres of Taylor County land to defendant in error.
Second: An agreement that the domiciles of defendant in error, Allen, and Rockwell were truly stated in the plea of privilege. *Page 508
Third: A letter from Allen and Rockwell, which it was admitted was addressed to plaintiff in error and was received by him in Parker County, stating the Fort Worth property consisted of 32 three-room rent houses about two years old, nicely papered and painted, with deep well, wind mill, electric pump, and sewage system, and that defendant in error would trade for plaintiff in error's land, making the following guarantee for 22 months, each party to pay 2 1/2 per cent commission, viz: 12 houses at $2.00 per week $24.00; 12 houses at $1.50 per week $18.00; and 8 houses at $1.00 per week $8.00; making a total per week of $50.00. The letter also showed that on the basis of the guaranteed rental the lots would pay, after deducting taxes and insurance, 8 per cent net on $30,000.
Fourth: An agreement that the exchange contract was signed by plaintiff in error at Fort Worth, by defendant in error at Sweetwater, and was returned to plaintiff in error in Parker County, with a letter stating that plaintiff in error had gotten "some good income property."
Fifth. An agreement that the letter of Allen and Rockwell to plaintiff in error was in response to a letter from plaintiff in error making inquiry about what the Fort Worth lots were bringing in rentals.
At the March term, 1914, defendant in error requested the court to submit to the jury the issues presented by his plea of privilege, to which plaintiff in error objected, on the ground that the court's previous order conclusively determined the plea, which objection was sustained, and the court declined to again hear or determine the plea.
The trial of the case, on the merits, on April 24, 1914, resulted in a verdict and judgment for plaintiff in error, against defendant in error, for $4038.50, and in favor of Allen and Rockwell.
On appeal, the Fort Worth Court of Civil Appeals reversed the judgment of the District Court, in so far as same was against defendant in error, and remanded the cause, with directions to sustain the plea of privilege and to transfer the case to the District Court of Nolan County for a new trial as between plaintiff in error and defendant in error. 178 S.W. 628.
Plaintiff in error complains of the action of the Court of Civil Appeals in reviewing the order overruling the plea of privilege, in the absence of a bill of exceptions, citing Levy v. Lupton, 156 S.W. 363; American Warehouse Co. v. Ray,150 S.W. 764; and Ward v. Odem, 153 S.W. 634.
These cases are cited on the proposition that defendant in error having taken no bill of exceptions when his plea of privilege was overruled is to be considered as having acquiesced therein, under rule 70 for the District and County Courts, 142 S.W., XXII. The writ of error was granted because of the conflict between those decisions and the decision in this case. *Page 509
If the evidence submitted on a plea of privilege be brought before the appellate court in either a bill of exceptions or a statement of facts, we are sure it should be considered. The bill of exceptions is an appropriate means of disclosing proceedings preliminary to the trial of a cause on its merits. But the determination of an issue presented by a plea of privilege may well be regarded as a part of the "trial" referred to in our statute directing the preparation of a statement of the facts given in evidence on the trial. Mi Palmo v. Slayden Co.,100 Tex. 15, 92 S.W. 796; Gulf C. S.F. Ry. Co. v. Muse,109 Tex. 360, 4 A.L.R., 613, 207 S.W. 897. So far as concerns the court's order on the plea of privilege and a party's exception thereto, a bill of exceptions would be entirely useless, the proper entry on the minutes definitely disclosing such order and exception. For that reason, no bill would be required where the question of venue was determined on special exception only. Thomson v. Locke, 66 Tex. 386, 1 S.W. 112. Disregarding mere form, it is quite indisputable that defendant in error did not acquiesce in the court's action in overruling his plea. Instead of acquiescing, he was excepting, and he was preparing and preserving everything requisite to avail himself of his exception in the reviewing court.
It can hardly be said that defendant in error failed to take a bill of exceptions. He preserved in the record all that transpired in the court below when his plea of privilege was heard and sustained, and when it was heard and overruled, in the order on the minutes and in what is termed a statement of facts, both authenticated by the trial judge. Not only does the statement of facts show all the evidence introduced in support of, and against, the plea, and the court's action thereon, but it also shows, by express reference to the order overruling the plea, the exception to the court's ruling as reserved in open court. Therefore, we have in the record all that would be required in a proper bill of exceptions, if we ignore mere form. We should ignore mere form not only in obedience to the dictate of reason but in obedience to the mandate of article 2059 of the Revised Statutes.
Royal Insurance Co. v. Texas P. Ry. Co., 102 Tex. 307,116 S.W. 46, is decisive of the proposition that copying the statement of facts into the transcript, instead of transmitting the original, was a mere informality in the manner of bringing the case to the Court of Civil Appeals. Under rule 8 for the Courts of Civil Appeals, 142 S.W., XI, plaintiff in error was required to object to the consideration of the statement as copied within thirty days after the transcript was filed. His failure to make objection of any sort, for some six months after the filing of the transcript, was a clear waiver of any objection to the manner in which the statement of facts was presented. The Court of Civil Appeals correctly refused to disregard the copy of the statement in determining the appeal.
To deprive a defendant of the right of trial in the county of his *Page 510 domicile, the case against him must be within an exception to article 1830 of the Revised Statutes. With the venue challenged, under proper plea, by one sued without his county, as shown by the plaintiff's pleading, or by proof, the burden not only to allege but to prove that the case is within one of the exceptions to the statute rests on the plaintiff. Pecos N.T. Ry. Co. v. Thompson, 106 Tex. 460, 167 S.W. 801; Hilliard Bros. v. Wilson, 76 Tex. 184, 13 S.W. 25; Durango Land Timber Co. v. Shaw, 165 S.W. 490; Cloyd v. Sacra, 175 S.W. 457; Graves v. McCollum Lewis, 193 S.W. 217. Plaintiff in error wholly failed, on the hearing or rehearing of the plea of privilege, to meet the burden resting on him to prove a cause of action for fraud committed in Parker County. The Court of Civil Appeals directed the entry of the order, on the plea of privilege, to which defendant in error was in law entitled in the trial court, and the Supreme Court would not be authorized to set aside the judgment of the Court of Civil Appeals, in order that another trial be had of the plea of privilege. Pecos N.T. Ry. Co. v. Thompson, 106 Tex. 461.
The judgment of the Court of Civil Appeals is affirmed.
Affirmed.