Certain phases of this cause have been before this court heretofore; see Holloway v. Smith, 68 S.W.(2d) 554.
This suit was instituted by Sterling C. Holloway and others, in the district court of Gillespie county, against D. J. Hoerster, individually and as receiver of the Bank of Fredericksburg, Brooke Smith, Sr., Gardner Thomas, and others.
Sterling C. Holloway and his associates, who are appellees here, allege in the first count of their petition, that they had purchased from D. J. Hoerster, as receiver of the Bank of Fredericksburg, all of the capital stock of the Brooke Smith Realty Company, together with three vendor’s lien notes executed by that company, for the consideration of $1,000 paid in cash. They further allege that Brooke Smith, by publishing notices, by an affidavit filed of record in'the office of the county clerk of Brown county, Tex., and by attempted interference with the possession of the assets of the Brooke Smith Realty Company, is asserting and claiming some character of interest in the title to the stock of said Brooke Smith Realty Company and of its assets, for himself and on behalf of the other defendants herein, except Hoerster, receiver; that in truth and in fact the said Brooke Smith and his associates have and own no interest, nor any valid claim to or right in the said stock of the Brooke Smith Realty Company, or its assets. Ap-pellees then pray for judgment decreeing and adjudging them to be the owners of the capital stock and assets of the realty company.
Count 1 of the petition might be regarded as a suit to remove the cloud from the title to the stock and other assets of the realty company, caused by the acts of Brooke Smith, Sr.
The second count of the petition was in the nature of an alternative plea for damages, if the title to the stock and assets of the realty company should fail and Brooke Smith, Sr., should establish his title and that of his associates to this stock and assets.
The third count of the petition was an alternative plea asking for recovery upon warranty of title in the event appellees’ title to the stock and assets should fail.
Brooke Smith, Sr., and Gardner Thomas filed pleas of privilege to be sued in the county of their residence, which was Brown county. Appellees, in due time, filed a controverting affidavit to these pleas of privilege. Appellants directed certain general and special exceptions to the controverting affidavit, which were sustained by the trial court, upon the first hearing, and the plea of privilege upheld. It was from this action of the court that the first appeal was taken, and this court held, on that appeal [68 S.W.(2d) 554], that the controverting affidavit was sufficient, as a matter of law, to show venue in Gillespie county, and reversed the judgment of the trial judge and remanded the matter, with instructions that-
The record in the present appeal shows that the trial judge did overrule all exceptions to the controverting affidavit, and that a hearing was had on evidence introduced as to the pleas and as to the merits of the cause at one and the same time, and that this method of procedure was agreeable to all parties to the suit.
The trial was to a jury, and at the close of the testimony the trial judge overruled the pleas of privilege and gave an instructed verdict in favor of Holloway and his associates, against all defendants, for the title and possession of the stock and assets of the Brooke Smith Realty Company. He further found that Hoerster, nei-ter individually nor as receiver of the bank, should be adjudged to pay any of the costs.
The evidence shows, and the trial judge so found as a matter of law, that Hoerster, as receiver, properly transferred the stock and assets of the Brooke Smith Realty Company to Holloway and his associates, and, therefore, it is plain, both from the evidence and the finding of the trial judge, that Holloway did not have any cause of action against Hoerster, the only defendant resident in Gillespie county. As stated by this court in its original opinion [68 S.W.(2d) 554], venue in Gillespie county depended upon Holloway’s being able not only to allege, but to prove, at least a prima facie cause of action against Hoer-ster.
Appellees make no complaint at the finding of the trial judge, as a matter of law, that Hoerster should be discharged without the payment of costs. It is true that the trial judge gave Holloway and his associates judgment against all of the defendants for the title and possession of the stock and assets of the Smith Realty Company, but the evidence further shows that Hoer-ster never, at any time, questioned Holloway’s right to this stock and assets. In other words, he disclaimed any right in and to this property. Certainly, in the light of the evidence, appellees could not possibly contend that they had shown any controversy between them and Hoerster, such as wo.uld give venue of this cause to Gillespie county. The record clearly shows that the only real controversy in this suit is between Holloway and his associates,. on the oire hand, and Brooke Smith and his associates, on the other hand.
The trial judge, from the evidence before him, should have sustained the pleas of privilege arid ordered this cause transferred to the district court of Brown county. It follows that the district court of Gillespie county,' not having venue of this suit, could not render any judgment upon the merits of the case.
The judgment of the trial court will be reversed and judgment here rendered sustaining the pleas of privilege of Brooke Smith and Gardner Thomas, and transferring this cause to the district court of Brown county. The costs of this appeal will be taxed against appellees.
Reversed and rendered.