Felix A. Blucher v. Aaron G. Milsted, 31 Tex. 621

Morrill, C. J. —Suit upon a note dated at Brownsville, Texas, and executed by appellant to appellee, payable on demand. The suit was instituted on the 25th of September, 1866, in the county of Cameron. Defendant pleaded that at the institution of the suit his residence and domicil were in the county of Nueces, verifying his plea by his oath. The statute applicable to the question (Art. 1423) provides that “No person who is an inhabitant of this state shall be sued out of the county where he has his domicil,” with eleven exceptions, none of which affect this case.

The plea in abatement was properly pleaded, and all of the witnesses testified to the truth of the plea. The plaintiff introduced testimony showing that defendant held an office in Brownsville from June, 1866 to September of the same year, and there was a discrepancy of the testimony as to the defendant’s residence at the institution of the suit. The plaintiff seems to have had the opinion that if defendant was transacting business in Brownsville, in Cameron county, he could be sued there, notwithstanding he had a domicil in Rueces county. But such is not the case.

The statute uses the word domicil, which has a well-known meaning. A married man may have his domicil in one county and transact business in another. As the testimony is conclusive and uncontradicted in any respect that the domicil of defendant was in Rueces county both at the time of the execution of the note and at the time of the institution of the suit, the district court erred in not sustaining the plea in abatement. Reversed and reformed.