Brooks v. Wichita Mill & Elevator Co.
| Decision Date | 09 April 1919 |
| Docket Number | (No. 1524.) |
| Citation | 211 S.W. 288 |
| Court | Texas Court of Appeals |
| Parties | BROOKS v. WICHITA MILL & ELEVATOR CO. |
Action by the Wichita Mill & Elevator Company against John H. Brooks. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Norman, Shook & Gibson, of Jacksonville, for plaintiff in error.
Martin, Bullington, Boone & Humphrey, of Wichita Falls, for defendant in error.
The defendant in error, Wichita Mill & Elevator Company, sued plaintiff in error, John H. Brooks, in the county court of Wichita county, for goods sold and delivered to plaintiff in error amounting to the sum of $406, alleging that Brooks in writing agreed to pay the indebtedness in Wichita county. The petition was filed June 20, 1917. On August 2, 1917, the plaintiff in error filed his plea of privilege to be sued in Cherokee county, Tex., setting up his residence in that county at the institution of the suit, when the service of the citation was had on him, and at the time of the filing of the plea, and not in Wichita county at either of said dates, alleging that he did not promise nor contract in writing to pay the alleged debt in Wichita county; also negativing the exceptions authorizing the suit in the county other than the residence of the defendant, as now authorized by our statutes, the plea being sufficient in form. The defendant in error did not controvert the plea filed by plaintiff in error by a sworn plea or otherwise. On the 3d day of December, 1917, the court rendered judgment for defendant in error for the amount sued for, reciting in the judgment the appearance of the plaintiff therein, and that "the defendant, though duly cited to appear to answer, came not, but wholly made default," etc.
The questions presented on this appeal are whether the court should have changed the venue upon the filing of the plea upon defendant in error's failure to controvert the plea, or whether the plaintiff in error waived his plea by failure to present it to the court and urge that the venue be changed, and whether the court, with the plea on file, could enter a default judgment.
At the time the petition was filed, June 20, 1917, the amendment of article 1903, R. C. S. by 35th Leg. 1917, General Laws, p. 388 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), was then in effect. The act went into effect 90 days after adjournment, which occurred on the 21st of March, 1917. This gave full 90 days before the institution of the suit, and that act was then in force, and will govern the procedure with reference to the plea of privilege in this case. By the amendment a radical departure from the original practice and procedure is apparent. It is manifest when the former amendments are taken into consideration that it was the evident purpose of the Legislature to abolish the strict rules that originally prevailed with regard to pleas of this character. Sustaining the plea now does not abate the suit as formerly, but simply changes the venue. Stevens v. Polk County, 58 Tex. Civ. App. 153, 123 S. W. 618; Hickman v. Swain, 106 Tex. 431, 167 S. W. 209. The first part of article 1903, as amended, is in words the same as it was under the amendment by the Thirtieth Legislature (chapter 133), but has added thereto making the filing of the plea prima facie proof of the right to a change of venue by the defendant in the absence of a controverting affidavit or plea, and in which case the court must note on the contest an order setting a day for the trial thereof, and give to the defendant 10 days' notice before such trial. Under articles 1832 and 1833, when a plea of privilege is sustained, it is provided thereby that the case shall be transferred by the court to the county having jurisdiction. Before the present amendment it was necessary for the defendant aliunde his plea by evidence to prove his right to be sued in the county of his residence. Upon such proof it was the duty of ...
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