Being unable to concur in the majority opinion, I shall state my individual views briefly. Admittedly the fact was properly alleged in the controverting plea that the alleged usurious contract was made in Haskell county. Unquestionably there was ample evidence, if not undisputed evidence, to show that if any such contract as alleged *Page 389 was made anywhere, or if it was a usurious contract, it was made in Haskell county. By the provisions of R.S. 1925, art. 1995, any defendant sued in the state of Texas has the right to be sued in the county of his domicile, unless in any particular case there exists at least one of the exceptions provided for in subdivisions 1 to 30, inclusive, of said article. There are other statutory provisions prescribing venue in particular cases, or under exceptional circumstances which standing alone would not be subordinate to the general provision giving the defendant the right to be sued in the county of his residence, but in said article 1995, after exceptions 1 to 29 are enumerated, exception 30, by its express terms, refers to all other such statutory provisions, and expressly makes them exceptions to the general rule of venue prescribed in article 1995. It follows that articles 2007 and 2008, R.S. 1925, are thus made to apply to all venue statutes. In other words, the provisions of R.S. 1925, art. 5073, declaring that in a penalty suit therein provided for, the suit may be brought in the county among others where the contract was made, is by the express terms of said subdivision 30, and the first paragraph of said article 1995, made an exception to the general rule granting any defendant the right to be sued in the county of his residence.
The fact or facts to show that a particular case comes within an exception must be pleaded by the plaintiff and proved. Two facts are necessary to be thus pleaded and proved to show that the instant case comes within that exception which provides that a suit for penalty for usurious interest may be brought in the county where the contract, under provisions of which the usurious interest is claimed to have been paid or collected, was made. The first fact is whether the suit is one for penalty provided for in said article 5073. That fact the court knows judicially. At any rate, the all sufficient evidence of it is the plaintiff's petition. The other fact is that the contract claimed to be the usurious contract was made in the county where the suit is brought.
The question is: Was plaintiff required upon the hearing of the plea of privilege to prove the existence of a usurious contract, or was it sufficient for him to prove that the contract which in his petition he alleged to be usurious was made, if at all, in Haskell county. It must have been contemplated in the enactment of the venue statutes, that in a suit for penalty under authority of article 5073, there would probably be involved an issue of fact or of law as to the existence of a usurious contract, as well as other issues, like that, for instance, of whether usurious interest was in fact received or collected by defendant. In every such suit where the plaintiff's cause of action is well pleaded, an issue of whether the contract alleged to be usurious is a usurious contract as a matter of law will be joined by a general demurrer, and an issue of the existence of any contract, and if it exists, whether it be a usurious contract, is joined as an issue of fact by a general denial. It may well be true that the sole necessity for such a suit is to litigate the single question, for example, of whether or not a particular contract provides for the payment of usurious interest. Suppose in such a case the issue ought to be decided as one of law upon the pleadings, what court, when the suit is brought in the county where the contract was made, ought to determine that issue? The court in the county where the contract was made, or the one in the county of defendant's residence? Such an issue being one involving only the merits of the suit, would never be reached until after disposing of the plea of privilege, if any. The defendant has the legal right to have the suit tried in the county of his residence (in the absence of any of the exceptions) just the same where all the issues are issues of law, as where they are issues of fact, or of both law and fact. In other words, in this case the defendant who filed the plea of privilege had the right to have all issues involving his liability tried in Bexar county, unless (omitting exceptions unimportant here) the place where the contract in question was made was Haskell county. In a case like the one supposed, where the only really controverted issue is one of the existence of any contract at all, or whether a certain contract be usurious, can it be the law that the very issues which the suit is brought to determine, must be litigated in the foreign jurisdiction in order to determine the place where the suit should be tried? If so, of what practical value is the privilege sought to be conferred by article 1995? If, in order to secure such privilege, the defendant must stand trial in the foreign jurisdiction upon the same issues upon which it is sought to hold him liable at the end of the suit, why not make such trial determinative of his liability? What sound basis exists for any presumption that the judge or jury in the foreign *Page 390 jurisdiction would determine such issues in his favor upon the trial of the plea of privilege, but would not so determine the same issues if it were a trial upon the merits? Why have two trials of a case instead of one involving the same issues, especially when at the time of the last trial no conceivable reason upon which the defendant's privilege to be sued in the county of his residence rather than in a foreign jurisdiction rests, could have any possible operation ?
Suppose upon the hearing of the plea of privilege the court, upon a preponderance of the evidence or the undisputed evidence finds, that the transaction claimed to constitute the contract, or usurious contract, occurred in Haskell county in such manner that if it were a contract or a usurious contract, the same was made in that county, but should further conclude that as a matter of law the transaction did not constitute a contract, or, if so, was not a usurious contract. Such is the instant case. If the determination of either of these issues can properly be determinative also of the plea of privilege, it would be the duty of the court, of course, to transfer the case. If the plaintiff appealed, and the appellate court affirmed the action of the court below, what issue in the case would remain to be tried in the county of defendant's residence? Would it be expected that the plaintiff would again try out the issue of defendant's liability in the county of defendant's residence in the face of a decision of the appellate court foreclosing that question against his contention as a matter of law. Under such circumstances, how could it be said that the case had been tried in the county where the law gave the defendant the right to have it tried? Or, again, if without an appeal by plaintiff, the defendant, upon the trial in the county of his domicile, presented the same issue as one of law, and the court overruled it, and upon appeal the court's action was sustained. Would that not conclusively show that plaintiff had the right to maintain the suit in Haskell county? Is the right of the defendant to be sued in the county of his residence (in the absence of any of the prescribed exceptions) any more important, or better entitled to be enforced by the court than the right of the plaintiff to bring and maintain the suit in the county where some exception provides it may be brought?
The principle that should control the question at issue has been decided, I think, by the Supreme Court in International G. N. Ry. Co. v. Anderson County, 106 Tex. 60, 156 S.W. 499, 501. That was an injunction suit brought in Anderson county, and the venue sought to be maintained there, on the ground that the law under the facts alleged in plaintiff's petition made that county the only legal domicile and place of residence of the defendant. The defendant was operating under a charter designating Houston in Harris county as its domicile and place of residence, and the defendant claimed Harris county as the county of its residence. The nature of the issues tendered by the suit was such that their determination would have the legal effect of determining also whether Anderson county or Harris county was the place of legal residence of defendant. Judge Phillips, for the Supreme Court, said: "If the suit had been filed in Harris county and the defendants in error (Anderson County et al.) should succeed upon the main issue, the result would serve to defeat the venue of that county. To sustain the venue of Harris county would necessarily involve the failure of their suit, whereas, if they prevail, the venue of Anderson county is established. In such a case, the plaintiff should be held entitled to invoke the venue that accords with the establishment of the allegations of his petition, rather than under the necessity of submitting his cause in any court whose jurisdiction depends upon their refutation." Similarly, in this case, if there was any such contract as the one alleged, and, if it was a usurious contract; it was made in Haskell county, and plaintiff has the right to have the case tried there. If the alleged contract was never made, or was not usurious, he has no cause of action wherever the case may be tried. It was not incumbent upon him to go to Bexar county to try a suit, a determinative issue in which, if decided in his favor, would show he had a legal right to sue in Haskell county any more than it was necessary for Anderson county to try its suit in Harris county, a determinative issue in which, if decided in its favor, would show its right to sue in Anderson county.
In my opinion, any construction of the venue statute which requires issues involving the liability of a defendant sued without the county of his residence to be twice tried is utterly unreasonable, and *Page 391 wholly unnecessary to the accomplishment of any purpose of the venue statutes.
Note: The motion for rehearing was left pending in this court awaiting the answer of the Supreme Court to certified questions in Compton v. Elliott (Tex.Civ.App.) 55 S.W.2d 247. Said questions were answered by the Supreme Court in an opinion, of date November 20, 1935, found in88 S.W.2d 91. After the Supreme Court's opinion, the court of civil appeals unanimously overruled said motion for rehearing on February 14, 1936. (Justice Leslie)