Alpha Petroleum Co. v. Gray
| Decision Date | 01 April 1937 |
| Docket Number | No. 10375.,10375. |
| Parties | ALPHA PETROLEUM CO. v. GRAY. |
| Court | Texas Court of Appeals |
Wm. N. Bonner, of Houston, for plaintiff in error.
J. W. Gray brought this suit against the Alpha Petroleum Company in the district court of Trinity county. Citation was duly issued and served on defendant, returnable to the March term of court, 1935; and defendant seasonably filed its plea of privilege to be sued in Harris county. Plaintiff filed a controverting affidavit on March 7, 1935, and on the same day his attorney, before ascertaining the date on which the contest of the plea of privilege would be heard, had the clerk issue the notice or citation to be served on defendant. Consequently, as issued by the clerk, both the original and copy commanded the sheriff or any constable of Harris county to summon defendant to appear on the ____ day of March, 1935, at the district court room in the courthouse of Trinity county; also, both the original and copy, when issued by the clerk, contained this recital, "* * * A controverting plea having been filed therein by J. W. Gray on the 7th day of March, 1935, and the court having noted upon such plea the following * * * and to notify it, and by the service of a true copy hereof it shall be and stand notified."
The original and copy of the form of notice as issued by the clerk contained, in the sheriff's "return," this recital: "* * * By delivering to the within named Alpha Petroleum Company, J. M. Campbell, Agent, a true copy of this notice a certified copy of the controverting plea and notation thereon accompanying such notice."
Plaintiff's attorney instructed some one in his office, after he had learned from the judge that March 25th was a convenient day on which to hear the contest of the plea of privilege, to fill in the blank spaces of the notice. The first blank space in the original of the notice was accordingly filled in to show that defendant should appear on "25th day of March, 1935," and its second blank space was filled in so as to indicate that the court had noted on the plea of privilege the following, "Set for March 25, 1935." Through an oversight the blank spaces in the copy of the notice were not filled in at all. The sheriff of Harris...
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Tunstill v. Scott, 1885-7806.
...waiver of it, the court has no jurisdiction, over the defendant not served, to enter an order overruling the plea. Alpha Petroleum Co. v. Gray, Tex.Civ.App., 103 S.W.2d 1047; Scruggs v. Gribble, Tex.Civ.App., 41 S.W.2d 643; Panther Oil & Grease Mfg. Co. v. Crews, Tex.Civ.App., 124 S.W.2d 43......
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Hamill v. Kitchen
...far as it affected the defendant filing the plea of privilege. Scruggs v. Gribble, Tex.Civ.App., 41 S.W. 2d 643; Alpha Petroleum Co. v. Gray, Tex. Civ.App., 103 S.W.2d 1047. Likewise, the requirement of service was held to be jurisdictional, and "without the service, and there being no waiv......
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McDaniel v. Gonzalez, 4058.
...is sustained by a number of authorities, among which are Wilson v. J. I. Case Co., Tex.Civ.App., 139 S.W.2d 611; Alpha Petroleum Co. v. Gray, Tex.Civ. App., 103 S.W.2d 1047; Panther Oil & Grease Mfg. Co. v. Crews, Tex.Civ.App., 124 S.W.2d 436; Humphrey v. Mirike, Tex.Civ.App., 134 S.W.2d 74......
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Wilson v. J. I. Case Co.
...v. Gribble, Tex.Civ.App., 41 S.W.2d 643; Commercial Standard Insurance Co. v. Lowrie, Tex.Civ.App., 49 S.W.2d 933; Alpha Petroleum Co. v. Gray, Tex.Civ.App., 103 S.W.2d 1047; Panther Oil & Grease Mfg. Co. v. Crews, Tex.Civ.App., 124 S.W.2d An examination of the authorities cited will show t......