Whiting v. Briscoe and Harris, 1 Dallam 540

OCHILTREE, Justice. Briscoe and Harris sued Whiting in the District Court of Harris County, in an action of debt, returnable to the fall term, 1839. Whiting pleaded in abatement that he was at the time of suing out the plaintiff’s writ a citizen of Bastrop County and not a citizen of the county of Harrisburg, and prayed judgment of the court, that they would not take cognizance, etc. The plaintiffs took issue upon the plea and a jury were impaneled to try the issue.

The jury returned the following verdict: “We, the jury, find that Samuel Whiting was a resident of the county of Harris on the 14th October, 1839”— which was the date of the writ or citation in this case. The defendant, Whiting, then pleaded the general issue and submitted the case to the jury, who found a verdict for the plaintiffs and a judgment was rendered accordingly. Whiting appealed.

There were several exceptions taken in the course of the trial below; but inasmuch as they were not of sufficient importance Lo attract the further attention of the distinguished counsel whose argument has been submitted to us in this case, we will confine our attention to the point which has been brought before us.

It is contended by the counsel for the appellant that the finding of the jury did not answer the issue presented by the plea; that although Whiting may have resided in Harrisburg County on the 14th October, 1839, the date of the issuance of the original writ, that there was an alias writ, issued on the 21st April, 1840, upon which he was served and brought into court to answer at the time when he resided in another county; and inasmuch as the statute requires that in all cases not herein excepted the citizen should be sued in the county in which he resides, that it is the place of residence, at the time of the service of the writ, which determines the jurisdiction of the court over his person.

This court is of a different opinion. The - party instituting the suit ascertained the residence of Whiting, and commenced their suit in accordance with law. If Whiting afterwards, for the purpose of evading the jurisdiction, should have left the county in which the suit was instituted, it certainly could not be expected that the plaintiff should be reduced to the necessity of dismissing his suit, for the purpose of instituting another, when a like occurrence might happen. The residence of the party at the time of the institution of the suit determined the jurisdiction, and in this we unanimously concur.

Let the judgment of the court below be in all things affirmed with damages, etc. Affirmed.