288 S.W. 256


THOMPSON et al.
v.
PICKETT & GOLIGHTLY.


(No. 1906.)


Court of Civil Appeals of Texas. El Paso.


November 4, 1926.

        Appeal from District Court, Erath County; J. B. Keith, Judge.

Page 257

        Suit by Pickett & Golightly against R. M. Thompson, Maude Thompson, and 
another, in which the Thompsons filed pleas of privilege. From a judgment overruling the 
pleas of privilege, defendants named appealed. Reversed and remanded, with 
instructions.

        Chandler & Chandler, of Stephenville, for appellants.

        R. L. Thompson, of Stephenville, for appellees.

        HIGGINS, J.

        Appellees sued R. M. Thompson, of Freestone county, Maude Thompson, of 
Navarro county, and Bob Burdom, alleged to be a resident of Erath county, to recover a 
commission for alleged services performed in effecting a sale of a ranch situate in Erath 
county, owned by the Thompsons and sold to J. B. Wadlington. Purdom was the ranch 
foreman or manager. The Thompsons filed pleas of privilege to be sued in the counties of 
their residence. The plaintiffs' controverting affidavit adopted the allegations of their 
petition to sustain the venue in Erath county. Upon hearing the pleas of privilege were 
overruled and the Thompsons appeal.

        In order to maintain the suit against the Thompsons in Erath county, it was 
incumbent upon the plaintiffs to plead and prove some exception to the statute requiring 
suits to be brought in the county of the defendant's domicile. Article 1830, R. S. 1911; 
Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; Richardson v. Cage Co., 113 Tex. 152, 
252 S. W. 747.

        Appellees rely upon the exceptions contained in subdivisions 4 and 7 of article 1830, 
R. S. 1911.

        In an effort to fix the venue in Erath county under subdivision 7, it was alleged that 
Purdom and R. M. Thompson conspired and confederated together in that county to 
defraud the plaintiffs of their commission. It was not alleged that the conspiracy 
accomplished its purpose or that damage of any kind resulted from the same. However 
reprehensible it may be in morals to conspire to evade the payment of a just debt, we 
hardly think it actionable per se. No civil liability attaches unless something is done in 
furtherance of the scheme which results in damage. 12 C. J. 581. The petition states no 
cause of action for fraud; nor does the evidence adduced upon the hearing show any 
conspiracy or confederation whatever. Therefore the venue, as laid, cannot be sustained 
under subdivision 7.

        In order to sustain the same under subdivision 4, it was necessary to allege and 
prove a cause of action against Purdom for the recovery of the commission and that he 
lived in Erath county. Richardson v. Cage Co., supra. We doubt if the petition states such 
a cause of action, but assuming that it does, the evidence upon the hearing fails to show a 
cause of action of any kind against Purdom; nor does the evidence show that he is a 
resident of Erath county. In this state of the evidence the venue in Erath county is not 
sustained under subdivision 4, and the pleas of privilege should have been sustained.

        Reversed and remanded, with instructions to change the venue of the suit as to the 
Thompsons, to Freestone or Navarro county.

        Reversed and remanded, with instructions.