Citations
- 28 S.W.2d 608
Full opinion text
WALTHALL, J.
Appellee, a resident of Medina county, brought this suit in said county against appellant upon a promissory note executed by the latter, payable “at the place of residence of the owner or legal holder of this note, at his or their option.”
A default Judgment was rendered against appellant, wlio filed a motion for new trial setting up a meritorious defense, defect in the citation served upon him, and also setting up that the citation was not served upon him by a constable as the return showed, but by the tax assessor and tax collector of the town of Sabinal. .The motion was granted, and upon the same day appellant filed plea of privilege claiming the right to be sued in Uvalde county where he resides. Controverting affidavit was filed and the plea overruled, and from that order this appeal is prosecuted.
The service upon which the default' judgment was rendered was a nullity because served by one who had no authority so to do. By such service the court acquired no jurisdiction of the person of the defendant and the default judgment was void. Witt v. Kaufman & Kleaver, 25 Tex. Supp. 384.
The filing of the motion to set aside this judgment was not a waiver by' the defendant of his privilege to be sued in the county of his residence. St. Louis, A. & T. Ry. Co. v. Whitley, 77 Tex. 126, 13 S. W. 853; Atchison, T. & S. F. Ry. Co. v. Adams (Tex. App.) 14 S. W. 1015; Horton v. Lone Star Gas Co. (Tex. Civ. App.) 19 S.W.(2d) 617, 618; Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S. W. 1114, 121 S. W. 561.
The controlling question in this case is whether the venue was properly laid in Medina county under subdivision 5, art. 1995, R. S., and the terms of the note mating it payable at the place of residence of the owner or holder thereof at his or their option.
This question, we think, is ruled by the opinion rendered in General Motors Acceptance Corporation v. Christian (Tex. Civ. App.) 11 S.W.(2d) 620. In that case the suit was based upon a written obligation) of Christian which was payable at such place as the holder might designate. The holder in writing designated Tarrant county as the place of payment and filed suit in said coun- • ty. Christian pleaded his privilege to be sued in the county of his residence. The plea was sustained. In sustaining the ruling Chief Justice Pelphrey of this court, said:
“Subdivision 5, article 1995, provides: ‘If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county