Buchanan v. Jean
Decision Date | 04 March 1943 |
Docket Number | No. 2489.,2489. |
Parties | BUCHANAN v. JEAN. |
Court | Texas Court of Appeals |
Appeal from District Court, Ellis County; A. R. Stout, Judge.
Suit by E. W. Jean against Annie Buchanan for personal injuries allegedly sustained in an automobile collision wherein defendant filed plea of privilege to be sued in county of her residence. From judgment overruling plea of privilege, defendant appeals.
Reversed and remanded. Conforming to answer to certified question 172 S.W.2d 688.
Beauford H. Jester, J. C. Jacobs, and J. S. Simkins, all of Corsicana, for appellant.
Lynn B. Griffith and J. C. Lumpkins, both of Waxahachie, for appellee.
The defendant, Annie Buchanan, has appealed from an order entered by the District Court of Ellis County overruling her plea of privilege to be sued in the County of Navarro, her residence.
The order is assailed substantially on the grounds (1) that appellant's plea of privilege was wholly unchallenged by any controverting plea; and (2) the court erred in permitting appellee to amend his controverting plea by writing with pen and ink into the original a reference to his original petition and an adoption of the same over objections of appellant, because an amended controverting affidavit must be entire and complete in itself and operate as an entire substitution for the original, which original thereupon becomes an abandoned pleading. Appellant's plea of privilege conforms to Rule 86 of Vernon's Texas Rules of Civil Procedure.
Plaintiff alleged among other things the following:
The original controverting plea, duly sworn to, alleged in part:
At the hearing on the plea of privilege and the controverting affidavit appellant objected to the testimony offered as to the manner in which the accident happened, because the controverting affidavit was insufficient to support such testimony, which was overruled. At the conclusion of the testimony offered by appellee, appellant orally moved the court to sustain appellant's plea of privilege and the trial court declined to do so and, over objection of appellant, permitted appellee to write into the controverting plea with pen and ink the following: "That plaintiff makes full reference to his petition on file herein and makes the same a part hereof as though fully copied herein with all of its allegations in toto." Thereafter, when appellant's bill of exception was presented for approval, the court qualified it as follows:
Appellant relies on the doctrine announced by our Supreme Court in Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391, Compton v. Elliott, 126 Tex. 232, 88 S.W. 2d 91, and Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, to obtain a reversal of this case. The foregoing cases, together with the rule announced by the Supreme Court in A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 623, viz.: "To meet the requirement of the statute, it was necessary for the controverting plea to unmistakably allege that the party who swore to such plea made the petition a part thereof, and thereby swore to the essential facts embodied in the entire petition," have given us much concern in the application of the new rules. Rule 90, Vernon's Texas Rules of Civil Procedure, provides: It is obvious that the controverting affidavit, as originally filed, was insufficient in substance under the decisions hereinabove cited; but appellant did not at any time during the proceedings point out by motion or exception in writing any defects to said controverting plea, but relied on his oral objections to the evidence introduced in the trial. It is true that after both sides had rested and appellant had presented his oral argument, the trial court permitted the plaintiff to amend his controverting affidavit in the manner hereinabove set out, but appellant at no time during the trial of the cause pointed out by motion or exception in writing any defect of form or substance to the controverting plea. Did appellant waive the defects to the controverting affidavit? We think so. It is clear to us that Rule No. 90, supra, applies to a controverting plea. The only limitation imposed by said rule is "* * * that this rule shall not apply as to any party against whom default judgment is rendered." See also Rules Nos. 1 and 66, Vernon's Texas Rules of Civil Procedure.
Appellant does not claim any injury save and except that under the pleadings as made by the controverting...
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Leonard v. Maxwell
...be contained in a controverting affidavit prior to the adoption of the 'new rules' in 1941 is now in effect. Buchanan v. Jean (1943), Tex.Civ.App., reported in 174 S.W.2d 98, was an appeal from the judgment of the trial court overruling defendant Buchanan's plea of privilege. The controvert......
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Hamilton v. Jenkins
...to the same, as is provided by rule 90, Texas Rules of Civil Procedure. Bates v. Stinnett, Tex.Civ.App., 170 S.W.2d 644; Buchanan v. Jean, Tex.Civ.App., 174 S.W.2d 98; Mullins v. Archer, Tex.Civ.App., 176 S.W.2d 763. See also Strickland Transport Co. v. Atkins, Tex.Civ.App., 223 S.W.2d 675;......
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Red Arrow Freight Lines v. Cagle, 2743.
... ... Smith, supra, with reference to reversing and remanding pleas of privilege when the ends of justice justify such action. See Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688, 689. The facts in the above case are set out in detail in the opinion of this court, Tex.Civ.App., 174 S.W.2d ... ...
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H. E. Butt Grocery Co. v. Vaught, 14559
...Plaintiff did not then verify the controverting plea again. It appears from the opinion of the Court of Civil Appeals in that case, 174 S.W.2d 98, 100, that when defendant's bill of exception was presented to the trial court for approval, plaintiff was permitted to make oath as to the truth......