Brown Cracker & Candy Co. v. Jensen

• Decision Date: 25 September 1930
• Docket Number: No. 946.,946.
• Citation: 32 S.W.2d 227
• Parties: BROWN CRACKER & CANDY CO. v. JENSEN et al.
• Court: Texas Court of Appeals

32 S.W.2d 227

BROWN CRACKER & CANDY CO. v. JENSEN et al.

No. 946.

Court of Civil Appeals of Texas. Waco.

September 25, 1930.

Rehearing Denied October 30, 1930.

Appeal from District Court, Johnson County; O. B. McPherson, Judge.

Suit by M. Jensen and wife against the Brown Cracker & Candy Company and another. From an order and judgment overruling a plea of privilege, defendant named appeals.

Affirmed.

McCormick, Bromberg, Leftwich & Carrington and Leachman, Gardere & Bailey, all of Dallas, for appellant.

F. E. Johnson and Walker & Baker, all of Cleburne, and Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellees.

STANFORD, J.

This suit was filed in Johnson county, Tex., by M. Jensen and wife, Ruby Jensen, as plaintiffs, against the Brown Cracker & Candy Company of Dallas, Tex., and F. W. Woolworth Company of Cleburne, Tex., as defendants. Plaintiffs alleged, in substance, that the Brown Cracker & Candy Company was a private corporation, organized under the laws of Texas, engaged in the manufacture and sale of candies at wholesale for the purpose of sale to retailers, who in turn offered and sold said candies to the public generally. They further alleged that defendant F. W. Woolworth Company was also a private corporation with a permit to do business in Texas, and that it had a retail establishment located in Cleburne, Tex., for the purpose of selling its goods at retail. Said plaintiffs then alleged very fully that on January 14, 1929, plaintiff Ruby Jensen purchased from the retail store of defendant F. W. Woolworth Company in Cleburne, Johnson county, Tex., some chocolate candy which had been manufactured and processed by defendant Brown Cracker & Candy Company and by it sold to F. W. Woolworth Company for the purpose of resale to the public generally; that said chocolate so manufactured and processed by the Brown Cracker & Candy Company, and by it sold to F. W. Woolworth Company for the purpose of resale to the public, and some of which was sold at retail to Ruby Jensen by said F. W. Woolworth Company, contained poison or other deleterious matter, which, when eaten by the said Ruby Jensen, caused or produced serious and permanent injuries to plaintiff Ruby Jensen.

This suit was filed on September 30, 1929, and on the same date citations were issued to Johnson county for the F. W. Woolworth Company, and to Dallas county for defendant Brown Cracker & Candy Company, commanding both said defendants to appear and answer plaintiffs' petition on October 14, 1929. On said date the Brown Cracker & Candy Company filed its plea of privilege in due form to be sued in Dallas county, the county of its residence, and on the same date, but subject to its plea of privilege, said company answered to the merits of the case. Also on October 14, 1929, the defendant F. W. Woolworth Company filed a petition and bond seeking to remove this action to the United States District Court for the Northern Division of Texas, Dallas Division. Subject to its petition for removal, the defendant F. W. Woolworth Company also formally answered to the merits of said action on October 14, 1929. The petition of F. W. Woolworth Company to remove the cause to the United States District Court was set for a hearing by agreement of counsel for all parties for October 25, 1929. Said petition for removal was heard and considered by the court and overruled. On the overruling of the petition for removal by F. W. Woolworth Company, and on the same date, October 25, 1929, the Brown Cracker & Candy Company called the court's attention to the fact that its plea of privilege to be sued in the county of its residence, to wit, Dallas county, had not been controverted, although it had been on file more than five days, and moved the court for an order sustaining its said plea, and for removal of the case to Dallas county, whereupon plaintiffs' counsel stated to the court, in substance, that at the time the petition for removal to the federal court was set for hearing on October 25, 1929, and as a part of said agreement, it was agreed by the attorneys for all parties that no further proceedings would be had in the case until October 25, 1929. The court refused to enter an order sustaining the plea of privilege, but heard evidence as to the agreement of counsel tending to show good cause for the failure of plaintiffs' counsel to controvert the plea of privilege within five days after said plea was filed on October 14, 1929, and also the controverting plea. The controverting plea was filed October 28, 1929, and the good cause for failure to file same within the five-day period and the controverting plea were heard jointly by the court on November 29, 1929, and its judgment was: (1) "That plaintiffs had shown good cause for their failure to controvert defendant's plea of privilege within the statutory period;" and (2) "that the plea of privilege of the defendant Brown Cracker & Candy Company should be overruled," etc.

At the request of the defendant Brown Cracker & Candy Company, the court filed findings of fact and conclusions of law, and said company duly appealed from the order and judgment overruling its plea of privilege, and presents the record here for review.

Under its first proposition appellant contends that the terms of article 2007, Revised Statutes, are mandatory and upon the failure of plaintiffs to controvert the plea of privilege within the five-day period, as therein specified, the trial court, by operation of law, lost jurisdiction of the person of the defendant filing such plea, and was without authority in law to enter any order except one transferring it to the county of the residence of the defendant filing the plea. Under its eleventh proposition appellant contends that, where the defendant was required to answer on October 14, 1929, and file a plea of privilege on that date, and the plaintiffs failed to file controverting affidavit within five days, such plea of privilege was, by operation of law, sustained at the expiration of said five days, and the court was without authority to hear evidence over objection of defendant offered in support of a controverting affidavit filed October 28th, 1929. Under several other propositions appellant contends, in effect, that, even if the terms of article 2007 are not mandatory, and if a controverting affidavit may be filed after the expiration of the five-day statutory period, on showing of good cause for such failure, yet the evidence was insufficient in this case, in various respects specified, to show good cause for allowing the controverting affidavit to be filed after the expiration of the five day period. As we view this case, we do not think it is necessary to decide the question involved in appellants' first and eleventh propositions. We will say, however, if appellant, after the expiration of the five days for filing the controverting affidavit, and before same was actually filed, had asked the court for an order transferring said cause, and there had been nothing else in the case or connected with it, to prevent such transfer, then we think it would have been the duty of the court to grant such order, but we do not think the failure of a plaintiff to file a controverting affidavit within the five days would automatically transfer said cause or deprives the court of jurisdiction over same. Hewitt v. De Leon (Tex. Civ. App.) 5 S.W.(2d) 236, 237; Hewitt v. De Leon (Tex. Civ. App.) 293 S. W. 301; First Nat. Bank v. Childs (Tex. Civ. App.) 231 S. W. 807; Old v. Clark (Tex. Civ. App.) 271 S. W. 183.

The trial court, at the request of appellant, filed the following findings of fact material to the question here discussed:

"VII. That the F. W. Woolworth Company employed Messrs. Smithdeal, Shook, Spence & Bowyer, attorneys of Dallas, Texas, of which Mr. Alex W. Spence is a member, to represent it in this case, and that the Brown Cracker & Candy Company employed Messrs. Leachman & Gardere, attorneys of Dallas, to represent it in the case, and that Mr. R. T. Bailey, also an attorney of Dallas, was at said time and is now connected and associated with said firm of Leachman & Gardere and was authorized to and represented the Brown Cracker & Candy Company in all the proceedings in this case up to this time.

"VIII. That on October 14th, 1929, Mr. Alex W. Spence and Mr. R. T. Bailey came to Cleburne in connection with this case and went to the office of F. E. Johnson, one of the attorneys for plaintiffs, W. R. Walker, also one of the attorneys for plaintiffs, being present, and a conference was then and there held by said four attorneys relative to this case, in which conference Mr. Spence stated it was the intention of the F. W. Woolworth Company to file petition and bond for removal of the case to the Federal Court, and served notice of such removal on the attorneys for the plaintiffs, and on R. T. Bailey, attorney for the Brown Cracker & Candy Company at the same time; and Mr. Spence then suggested that a date be fixed for the hearing of the petition, saying that he was ready then or at any other time, and said attorneys, including Mr. Bailey, finally agreed on October 25th, 1929, as a time for the hearing of the petition; and the attorneys for the plaintiffs proposed, and such proposal was acquiesced in and consented to by Mr. Bailey as attorney for the Brown Cracker & Candy Company, that the case be set over to October 25th, 1929, without any further proceedings. As a part of such arrangement the attorneys for the plaintiffs agreed with the attorneys for the defendants that it would not be necessary for the latter to be present when the case should be called on the appearance docket next day, and that the attorneys for the plaintiffs would advise the court of the arrangement and request that the case would be passed to October 25th without any further proceedings, and that the attorneys for the plaintiffs so understood such arrangement and acted thereon, and when the case was...