Bennett v. Rose Mfg. Co.

• Decision Date: 04 December 1920
• Docket Number: (No. 8414.)
• Parties: BENNETT v. ROSE MFG. CO.
• Court: Texas Court of Appeals

226 S.W. 143

BENNETT v. ROSE MFG. CO.

(No. 8414.)

Court of Civil Appeals of Texas. Dallas.

December 4, 1920.

Error from Dallas County Court; T. A. Work, Judge.

Suit by the Rose Manufacturing Company against Julius Bennett. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions.

J. F. Murray, of Runge, for plaintiff in error.

Leake & Henry, of Dallas, for defendant in error.

TALBOT, J.

Appellee filed suit in the county court of Dallas county at law against the appellant on a verified account for the sum of $285.03. The petition alleged that the defendant in error was a corporation created under and by virtue of the laws of the state of Texas with its principal office and place of business in the city and county of Dallas, and that the plaintiff in error was a resident citizen of Karnes county, Tex. The petition was filed April 30, 1919, and the caption of the transcript shows that the next term of the court began on July 7, 1919. On June 12, 1919, the plaintiff in error, defendant below, having been duly cited to appear, filed a plea of privilege sworn to and in due form to be sued in Karnes county, the alleged county of his residence. On September 5, 1919, the defendant in error, plaintiff below, excepted to the defendant's plea of privilege on the ground that said plea failed to state the "status of defendant's residence between the 12th day of June, 1919, the date of the filing of the plea, and the 7th day of July, 1919, the first day of said term to which defendant was summoned to appear and answer." The plaintiff asserted that for the reason suggested in its exception to the defendant's plea of privilege, said plea had not been filed in accordance with our statutes upon the subject, and prayed "that said plea of privilege be set down for hearing and overruled." It does not appear that the plea was set down for hearing on any particular day or that the defendant had any actual notice of the plaintiff's exceptions thereto. It does appear, however, by the judgment of the court, that on September 19, 1919, the cause came on for trial; that the plaintiff by its attorneys appeared and announced ready for trial; that the defendant, though duly cited, came not, but that he had on file herein his plea of privilege; that plaintiff's exceptions to said plea came on to be heard and were by the court sustained; that then came on to be heard the cause on its merits, and, it appearing that the same was based upon a verified account, judgment was rendered in favor of the plaintiff against the defendant, and entered as of September 5, 1919. No motion for a new trial appears to have been filed, but the defendant, being dissatisfied with the orders and judgment of the court, duly prosecuted a writ of error to this court.

The contention of the plaintiff in error in this court is that the trial court committed fundamental error in overruling or striking out his plea of privilege and entering judgment on the debt sued on. This contention is well founded. The plea of privilege strictly conforms to the statute of this state governing such pleas as amended by the act passed by the 35th Legislature (1917), chapter 176, p. 388 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903). This amended statute makes the filing of a plea of privilege to be sued in the county of one's residence prima facie proof of his right to a change of venue in the absence of a "controverting plea" thereof under oath. When such plea of privilege and controverting plea are filed, it becomes the duty of the court to note on the controverting plea "a time for a hearing on the plea of privilege," and such hearing shall not be had until a copy of the controverting plea, including a copy of such notation thereon, shall have been served upon the defendant, or his attorney, for at least 10 full days exclusive of the day of service and day of hearing. If no contest as indicated is filed the defendant by filing his plea of privilege in conformity with the statute establishes his right to be sued in the county of his residence, "and the court no longer has jurisdiction over his person, but it is with the court in a different county." Brooks v. Wichita Mill & Elevator Co., 211 S. W. 288.

The defendant in error admits that, if the plaintiff in error "had filed a proper plea of privilege within seasonable time or even if prematurely and such filing went unchallenged, then the court could do nothing more than transfer the case to the county of the defendant's residence or dismiss it," but asserts, as applicable to the facts of the instant case, that a plea of privilege returnable on the 7th day of July, 1919, but filed on the 12th day of June, 1919, is prematurely filed and not complying with article 1903 of Vernon's Texas Civil Statute, 1918, Supplement, "to which we have referred, and, if properly excepted to, does not require a controverting plea under oath as provided where the answer is seasonably filed." It is argued in support of this contention that—

"The status of a citizen of this state in his relation to the jurisdiction of the various courts of the state over his person depends as much upon where he is living at the time he is called upon to answer as upon the date of the service of citation upon him or writ of garnishment as in this instance. If he is not a citizen of the county when the citation is served upon him, he at that time has the privilege of complaining of the fact that he is being sued without his county and immediately proceed to have the litigation removed to the county of his residence; provided, however, he does not bring himself within the jurisdiction of the court before return day by making that county the county of his domicile, and, if he does, that court would undoubtedly have jurisdiction over his person. It therefore becomes necessary that, if a nonresident should desire to take advantage of the venue statute, he should do so within the contemplation of that statute and file his plea accordingly; but we submit that the filing of this plea three weeks prior to the return day is not...