(dissenting).
I regret my inability to agree with the majority opinion on rehearing. The right to a trial in the county of residence or domicile is undoubtedly a sacred one, as is so often reiterated in the decisions of Texas, but there are rights just as sacred, which, should not be disregarded in apotheosizing the right of trial at home. The right of trial by jury, or before a judge when preferred tp a jury, and their contact with the witnesses, has been recognized as giving them the, vantage point over appellate judges and courts, probably far away, in making them the “exclusive judges of the credibility of witnesses and the weight to be given their testimony.” So the rule has followed, from the right conferred on juries and judges, that when there is any testimony to sustain the verdict or judgment, the appellate court has no authority to interfere. Therefore, appellate courts have no authority in matters of fact except to ascertain if there is any testimony to sustain the verdict or judgment.
This court may feel that the case on the facts should have been decided differently, but the authority to test the witnesses and weigh their testimony is lodged in the agencies of the trial court and not in this court.
*249It is true that Mrs. Hausman and members of the Hausman Brothers Packing Company were doing business in Laredo; and' that she is and was a director of the corporation. She was also running a business started by that corporation in Brownsville. In 1931, the corporation concluded to move its principal office to Laredo, but just about the time it was leaving Brownsville it entered into a contract of lease for three years of certain real property occupied by it for its business purposes. Mrs. Hausman was left in possession of the property; no assignment of the lease being indicated by any written instrument of record in the county, nor was the lessor apprised of any change in the lessee. Mrs. Hausman occupied the premises under and by virtue of a lease made to the corporation by the city. No one, so far as the testimony discloses, ever heard! that Mrs. Hausman was conducting an independent business, until it was desired to change the venue of this case from Cameron to Webb county, then an oral transfer of the lease was dragged out of its secret hiding place and paraded before the court. While in Brownsville a contract was made by the corporation for the use of a telephone, that telephone was in the name of the corporation, and so remained up to the date of the trial of this case. Mrs. Hausman did not know who rented the telephone, but she used it, and possibly paid for it. No satisfactory explanation is made of the lease and the telephone, and the connection of Mrs. Hausman with the principal. Mrs. Hausman swore that she was conducting an independent business, under a name so dangerously similar to the corporation name as to amount to an infringement of its right, and might subject her to the action of a court to prevent her invasion of the rights of the corporation. She was impeached by disinterested witnesses who swore that she told them that her business was a branch of the Laredo business.
The judge decided in favor of circumstances that were not and could not be explained, and against testimony weighted down with self-interest and conceived in secret, like a conspiracy, and capable of being answered only through circumstances. The court discarded the discredited, interested testimony of the witnesses desiring a change of venue.
The improbability of a business firm obtaining a lease on real estate for three years, then leaving it in the hands of a person not responsible for the rent, only on a verbal transfer of the lease, is so apparent that a court might have taken it alone on which to base its judgment. The judge had some testimony, and I feel that this court has no right or authority to reverse the judgment on the facts. I adhere to the original opinion written by me.
The appellate courts of Texas at all times emphasize with much zeal and sentiment the sacrosanct right of the debtor to be sued at his home where he can be heard by a jury of his peers, in his own vicinage; but the creditor must take his chances with peers or otherwise of any vicinage to which he may be forced by parties seeking to make the collection of debts as heavy a burden as possible.
The writer does not intend to advocate the impairment of the right of defendants to make their defenses in their own courts, before the friendly jurors therein, but he desires to uphold that other rule, just as sacred, that of the juror or judge to exclusively pass upon the credibility of witnesses and the weight to be given their testimony, and to sustain verdict or judgment where there is any testimony, direct or circumstantial, to sustain it. I think the circumstances sustain the judgment in this case.