The opinion
On Motion for Rehearing.
[2] After further consideration of this case upon appellants’ motion for rehearing, we have reached the conclusion that the trial court and this court fell into error in not sustaining the appellants’ plea of privilege to be sued in another county. When a cause of action is founded upon a trespass or fraud, the suit may be brought in the county where the trespass or fraud was committed, and we held in our former opinion that the plaintiff’s petition charged the defendants with perpetrating a fraud upon him in Brown county, and therefore the district court of that county had jurisdiction. After further consideration, we have reached the conclusion that the alleged fraud is not the gist of and does not constitute the plaintiff’s cause of action. His cause of action rests upon the fact that he has been and is unlawfully deprived of the possession and custody of his minor child; and, in so far as his right of recovery is concerned, it is immaterial that the defendants, by false and fraudulent representations, induced him to consent to the removal of the child from Brown county. The undisputed testimony shows that, when the child was carried from Brown county, the plaintiff voluntarily went with it; and the proof fails to show that his possession and right to control the child were interfered with or -denied by either of the defendants until they reached the home of the child’s grandparents in Pecos county. Hence we conclude that the venue of the suit was not properly laid in Brown county, and that the defendants’ plea of privilege should have been sustained; and, for these reasons, the judgment of affirmance heretofore rendered by this court is set aside, and the judgment of the court below is reversed, and the cause remanded, with instructions to that court to sustain the plea of privilege and transfer the case to Pecos county.
Motion granted. Judgment reversed, with Instructions.