Adams v. Johnson

• Decision Date: 05 October 1927
• Docket Number: (No. 809-4827.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 298 S.W. 265
• Parties: ADAMS v. JOHNSON et al.
• Court: Texas Supreme Court

Page 265

298 S.W. 265

ADAMS v. JOHNSON et al.

(No. 809-4827.)^*

Commission of Appeals of Texas, Section B.

October 5, 1927.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by D. C. Adams against C. A. Johnson and another. Judgment for plaintiff was reversed by the Court of Civil Appeals (291 S. W. 578), and plaintiff brings error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

Sullivan, Speer & Minor, of Denton, for plaintiff in error.

Hopkins & Koons, of Denton, for defendants in error.

POWELL, P. J.

The nature and result of this case have been admirably stated by the Court of Civil Appeals. See 291 S. W. 578. Adams sued C. A. and R. L. Johnson for a real estate commission. Both sides announced ready for trial, waiving a jury, on November 16, 1925. During the course of the trial on that day, it developed that alterations had been made in the note in suit without the knowledge or consent of the makers thereof. When that fact developed, counsel for the payee in the note asked leave to file a trial amendment, abandoning the suit upon the note, but praying for judgment for the principal amount of the note, as per the oral contract made therefor. The trial amendment also alleged that the changes in the note were innocently made. Counsel for the Johnsons objected to the filing of the trial amendment at that time, but, when such objection was overruled, they did not claim any surprise nor withdraw their announcement of ready for trial, nor ask for any continuance. But counsel for all parties proceeded with the trial upon the theory of the case as alleged in the trial amendment.

When counsel asked permission to file the trial amendment, the court stated that a venire for another case was appearing and he would prefer that the substance of such amendment be stated then and reduced to writing later. Counsel for the Johnsons did not object to this suggestion by the court, and no injury to them appears because of such procedure.

So, on the next morning, after the evidence had closed, and in the course of the argument, counsel for Adams tendered the formal written trial amendment, the substance of which had been stated the day before. At that time counsel for the Johnsons again objected to its filing, and then, for the first time, filed a plea of privilege on behalf of defendants, asking that the case be tried in Dallas county, where each of them resided. The plea of privilege was overruled by the trial court, and Adams was awarded judgment for the amount sued for in his trial amendment.

Upon appeal, the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause to that court, with instructions to the latter to sustain the plea of privilege and transfer the case to Dallas county, unless a controverting plea be duly filed and sustained.

Against the last-mentioned ruling by the Court of Civil Appeals, counsel for Adams complains in the Supreme Court. His first assignment of error here, and the first proposition thereunder, read as follows:

"First Assignment of Error.

"The Court of Civil Appeals erred in sustaining the fifth assignment of error of defendants in error, which assignment is as follows `The court erred in allowing the plaintiff to file said pleading, styled "trial amendment," in which a new cause of action was set up, in entering judgment herein and in not giving the defendants a hearing on their plea of privilege to be sued on said new cause of action in the county of their residence, and in not transferring this cause to the district court of Dallas county for trial upon such new cause of action as prayed for in defendants' plea of privilege filed herein on the 17th day of November, A. D. 1925, as is shown by defendants' bill of exception No. 5.'

"First Proposition.

"The defendants in error waived their right to have this cause litigated in the county of their residence when they appeared and participated in this trial until all the testimony had been introduced before filing their plea."

We think this assignment, and its accompanying proposition, must be sustained. It is not necessary for us to say what the rights of the Johnsons would have been had their counsel, when the trial amendment was informally filed on the first day of the trial, immediately filed a plea of privilege with or without a withdrawal of their announcement of ready for trial. No such situation is before us. The undisputed facts show that, after being fully apprised of the nature of this trial amendment, counsel for the Johnsons acquiesced in the continuation of the trial and permitted his announcement of ready for trial to stand. Nor did he, at that time, file any plea of privilege. It is well settled that a plea of privilege, under any statute we have ever had upon the subject, must at least be filed before an announcement of ready for trial upon the merits of the case. In the case at bar, counsel for the Johnsons permitted their anouncement of ready to continue in effect after the trial amendment had set up a new cause of action, and we think, unquestionably, they thereby waived their right to file a plea of privilege.

It is true that this plea of privilege was filed...