Bishop v. Galbraith

• Citation: 246 S.W. 416
• Decision Date: 22 November 1922
• Docket Number: (No. 6830.)
• Parties: BISHOP v. GALBRAITH.
• Court: Court of Appeals of Texas

246 S.W. 416

BISHOP v. GALBRAITH.

(No. 6830.)

Court of Civil Appeals of Texas. San Antonio.

November 22, 1922.

Rehearing Granted January 17, 1923.

Appeal from District Court, Cameron County; W. B. Hopkins, Judge.

Action by H. B. Galbraith against F. Z. Bishop. From a denial of defendant's motion to vacate a judgment entered after he had filed a plea of privilege on which no action was taken, he appeals. Judgment reversed, and cause remanded.

Birkhead & Lang, F. Stevens, and Thos. G. King, all of San Antonio, and Kibbe & Perkins, of Brownsville, for appellant.

H. B. Galbraith, of Brownsville, for appellee.

SMITH, J.

On November 19, 1920, H. B. Galbraith brought this action against F. Z. Bishop, seeking to recover upon an alleged debt. The cause was returnable to the March, 1921, term of court, and service of citation was had upon Bishop in time to require him to answer at that term, which convened on March 14th. On December 17, 1920, Bishop filed his plea of privilege, in due form, to be sued in Bexar county, where he claimed to reside, and on January 7th, following, filed an answer subject to the plea. No controverting affidavit was ever filed in reply to the plea of privilege, and without taking any action in the matter, the court adjourned for the term on April 16, 1921. The next regular term convened on May 30, 1921, and on June 6th, following, after having been regularly set for that day, the cause was tried in the absence of defendant Bishop, and judgment for approximately the amount sued for was rendered against him. No motion for new trial was filed at that term, nor at the next term, which convened in October, nor was appeal in any way perfected. But at the January, 1922, term, Bishop filed a motion to vacate and set aside the judgment, which motion was dismissed at the instance of Galbraith, and Bishop has appealed.

The judgment must be affirmed, first, because appellant waived his plea of privilege in the court below, and in doing so subjected himself to the jurisdiction of that court. The plea was filed in proper form, and in due time, and thus became prima facie proof of the defendant's right to change of venue. But there the defendant stopped. He did not then or thereafter at any time present the plea to the court, or call the court's attention to the fact that it had been filed. A trial court is under no obligation or duty to search the files of any cause to ascertain the nature of the pleas filed therein, but the burden rests always upon the party filing those pleas to affirmatively call them to the court's attention, and invoke its ruling thereon, and as all pleas to the jurisdiction and in abatement and other dilatory pleas not affecting the merits of the case must be disposed of at the term of the court at which they are filed (article 1910, R. S., and District Court Rule 24 [142 S. W. xix]), this duty of the proponent requires him to seek such action at the same term of court, and if he fails to do so, he waives his plea. Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224. The fact that the plaintiff in this case at no time filed any controverting affidavit has no bearing on the foregoing rule. Oil Co. v. Brooks (Tex. Civ. App.) 221 S. W. 321. It did not relieve the defendant of the duty of following up his plea, and obtaining action thereon at the current term of court, either disposing of the plea on its merits, or continuing it without prejudice. Failing in that duty, the defendant waived his privilege.

We are not unmindful of the apparent confusion of the authorities upon this question. This confusion seems to have grown out of the passage of the Act of April 2, 1917 (chapter 176, § 1 [Vernon's Ann. Civ. St. Supp. 1918, art. 1903]), changing the procedure relating to pleas of privilege. But we perceive nothing in that act which may be given the effect of modifying article 1910, or rule 24, or the decisions construing them. While it is true that in the act of 1917 it is provided that the filing of a proper plea makes a prima facie case for change of venue, its operation is not made automatic. There still exists the requirement in article 1910 and Rule 24 that the plea must be acted upon at the term at which it is filed, and the rule of decision that the plea is waived if not acted upon at such term, or unless the continuance is expressly made without prejudice to the plea. The burden still rests upon the party claiming the privilege to present his plea to the court, and obtain a ruling thereon. The act of 1917 does not specify the time within which the plaintiff shall file his controverting affidavit, and therein lies the defect in that statute. But this omission and defect cannot serve to add to or take from the proponent of the plea the burden of pressing his privilege, which is personal to him and may be easily waived by him at any time and in many ways. This burden never shifts to his adversary, or to the court. It remains upon him at all times until his privilege is established by a proper and timely ruling. It would be absurd to read into the amended statute a provision that the mere filing of a proper plea of privilege in a particular court, and the failure of the plaintiff...