Aldridge v. Webb

• Decision Date: 09 June 1898
• Citation: 46 S.W. 224
• Parties: ALDRIDGE v. WEBB et al.
• Court: Texas Supreme Court

Page 224

46 S.W. 224

ALDRIDGE v. WEBB et al.

Supreme Court of Texas.

June 9, 1898.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by Webb & Hill against W. H. Aldridge. From a judgment for plaintiffs, defendant appealed to the court of civil appeals, which certifies a question to the supreme court. Answered in favor of plaintiffs.

W. P. Sebastian, for appellant. Boren & Warren, for appellees.

DENMAN, J.

The court of civil appeals has certified to us explanatory statement and question as follows: "This suit was brought by Webb & Hill in the district court of Shackelford county against W. H. Aldridge, a resident citizen of Tyler county. After being duly cited, Aldridge answered, pleading, first, his residence in the county of Tyler, and claiming the privilege of being sued in that county, the plea being on its face a sufficient plea; and pleading next, and subject to the plea of privilege, to the merits of the controversy. That is to say, the plea of privilege was in due form, and filed in the due order of pleading, followed by a plea to the merits. This answer was filed April 28, 1897, and within a few days thereafter, at the May term of the court, which was the appearance term, the cause was continued by agreement until the succeeding term, the written agreement, filed April 30, 1897, for that purpose, reading: `Webb & Hill vs. W. H. Aldridge et al. It is agreed that the above cause be continued until the next regular term of court, and that such continuance be charged to defendants. [Signed by attorneys for both parties.]' Counsel for Aldridge appeared in open court, and had his name entered as such on the docket, and announced to the court that the case had been continued by agreement, whereupon the order of continuance was entered; the attention of the court not being called to the plea of privilege, and the condition of the docket being such as to afford ample time during that term to try the plea. The district judge held, upon this state of facts, that the plea of privilege, when the case came on for trial at the subsequent term, had been waived, and gave judgment upon the merits in favor of Webb & Hill against Aldridge; and to that action the first error is assigned by appellant, Aldridge, who insists that this case is distinguishable from Blum v. Strong, 71 Tex. 328, 6 S. W. 167, followed by us in Spencer v. James, 31 S. W. 542, and by the court of civil appeals of the Fifth district in Machinery Co. v. Smith, 44 S. W. 592, and is more analogous to a seemingly contrary line of cases cited in his brief. We therefore deem it advisable to certify this question to your honors for decision; that is, whether the continuance of the case generally by agreement, in the manner above shown, amounted to a waiver of the plea of venue."

The following articles of our Revised Statutes of 1895 and rules for district and county courts bear upon the question:

"Art. 1268. Pleas shall be filed in the due order of pleading, and shall be heard and determined in such order under the direction of the court.

"Art. 1269. Pleas to the jurisdiction, pleas in abatement, and other dilatory pleas and demurrers, not involving the merits of the case, shall be determined during the term at which they are filed, if the business of the court will permit."

"Art. 1291. When a case is called for trial, the issues of law arising on the pleadings, and all pleas in abatement, and other dilatory pleas remaining undisposed of, shall be determined, and it shall be no cause for the postponement of a trial of the issues of law that a party is not prepared to try the issues of fact."

"Rule 24. All dilatory pleas, and all motions and...