Auds Creek Oil Co. v. Brooks Supply Co.

• Citation: 221 S.W. 319
• Decision Date: 26 March 1920
• Docket Number: (No. 563.)
• Parties: AUDS CREEK OIL CO. et al. v. BROOKS SUPPLY CO.
• Court: Court of Appeals of Texas

221 S.W. 319

AUDS CREEK OIL CO. et al. v. BROOKS SUPPLY CO.

(No. 563.)

Court of Civil Appeals of Texas. Beaumont.

March 26, 1920.

Rehearing Denied April 14, 1920.

Error from Jefferson County Court; D. P. Wheat, Judge.

Action by the Brooks Supply Company against the Auds Creek Oil Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Jno. B. Daily, of Beaumont, and Moore & Hardison, of Paris, for plaintiffs in error.

H. M. Whitaker, of Beaumont, for defendant in error.

WALKER, J.

This suit was brought in the county court of Jefferson county, Tex., at law, by defendant in error, plaintiff below, and hereinafter referred to as plaintiff against the plaintiffs in error, defendants below, and hereinafter referred to as defendants, Auds Creek Oil Company and First State Bank of Paris, private corporations created by and under the laws of the state of Texas, with their domiciles and places of business in Lamar county, Tex., for damages alleged to have been occasioned by the breach of a contract and sale of certain oil well supplies. On the allegations in plaintiff's petition, the venue was properly laid in Jefferson county. Defendants being cited to answer at the April term of court, which convened on the 7th day of April, 1919, on the 5th day of April each filed in said court its respective plea of privilege, claiming the right to be sued in Lamar county, Tex. On the 25th day of April, the plaintiff filed exceptions to said plea. During the April term, the pleas of privilege were not called to the attention of the court for any purpose. The case was tried on the 6th day of May, during the May term, which convened on the 5th day of May, and adjourned on the 31st day of May. Judgment was entered for plaintiff against defendants for the relief prayed for, and the plea of privilege was thus disposed of.

"On this the 6th day of May, 1919, came on to be heard the above numbered and entitled cause, the defendants having been duly cited herein, and it appearing to the court that at a former term of this court the defendants, Auds Creek Oil Company and First State Bank of Paris, Tex., had filed their pleas of privilege to the venue of this cause, to which the plaintiff had interposed its demurrers because the said pleas were wholly insufficient, and it further appearing that said pleas of privilege were not called to the attention of the court at said former term, it is therefore found that said pleas of privilege were waived, and it is therefore ordered and adjudged that the same be dismissed and held for naught, and thereupon, the case coming on to be further heard, and the defendants having filed no answer herein contesting plaintiff's right of recovery, and saying nothing why plaintiff should not recover judgment as prayed for, the court having heard the evidence," etc.

Defendants filed no motion for new trial, nor have they filed in this court any statement of facts. On the 2d day of August, the defendants filed two assignments of error in the trial court, complaining of the finding that the pleas of privilege were waived. These assignments are brought forward in the briefs of plaintiffs in error, and are submitted as propositions. In our opinion the judgment of the trial court should be sustained for the following reasons, to wit:

First. In order to constitute a plea of privilege "prima facie proof of the defendant's right to change of venue," it must comply with article 1903, as amended by the Thirty-Fifth Legislature, Acts 1917, c. 176 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903). If such plea is not sufficient, then it is subject to demurrer, and plaintiff is not required to file a controverting affidavit. In this case plaintiff filed such demurrer. There is no provision of the statute requiring notice to be given of demurrers. The defendant must take due notice of the filing of such a plea as of other pleas in due order of pleading after service of citation. When the case was called for trial, the defendants did not appear. As we construe the decisions of our Supreme Court, this default on the part of the defendants will sustain the court in holding that they had waived their pleas of privilege.

In London Assurance Corporation v. Lee, 66 Tex. 247, 18 S. W. 508, Chief Justice Willie said:

"There is nothing in the record to show that the defendant called its pleadings to the attention of the court, or insisted upon their consideration, or asked that the judgment be set aside at the term during which it was rendered. It was presumptively in court after it had answered, and its duty was to look after its interests in the cause. It neither objected to the interlocutory judgment by default, nor appeared to look after the case when before the court upon writ of inquiry. This court has frequently held that, under such circumstances, it will presume that the defendant waived an answer, and the judgment will not be disturbed. Pierson v. Burney, 15 Tex. 272; McKellar v. Lampkin, 22 Tex. 244; Beal v. Alexander, 6 Tex. 541; Callison v. Autrey, 4 Tex. 371; Hopkins v. Donaho, 4 Tex. 336."

Second. The trial court, in its decree, made a specific finding that the pleas of privilege had been waived. There is nothing in this finding requiring us to hold that the waiver of the pleas is based solely and alone on the failure to present it at the preceding term of court. Rule No. 24 for district and county courts provides that pleas of privilege "shall be first called and disposed of before the main issue on the merits is tried." As a finding of waiver is a finding of fact, and as the court is required to "dispose" of such a plea, we must presume, in the absence of a showing to the contrary, that the court heard testimony sufficient to sustain this finding.

"It is presumed that the doings of a court of record are regular and proper, that its jurisdiction was properly acquired, that its...