Bundrant v. Woodley

• Decision Date: 29 October 1930
• Docket Number: No. 3470.,3470.
• Parties: BUNDRANT v. WOODLEY.
• Court: Texas Court of Appeals

32 S.W.2d 664

BUNDRANT v. WOODLEY.

No. 3470.

Court of Civil Appeals of Texas. Amarillo.

October 29, 1930.

Rehearing Denied November 12, 1930.

On Second Rehearing December 3, 1930.

Appeal from District Court, Hockley County; Homer L. Pharr, Judge.

Action by R. J. Bundrant, by his next friend, against E. L. Woodley. From an order sustaining defendant's plea of privilege and ordering the cause transferred to the district court of Dallas County, plaintiff appeals.

Affirmed.

Levens, McWhorter & Howard, of Lubbock, for appellant.

Schenck & Triplett, of Lubbock, for appellee.

RANDOLPH, J.

This suit was filed by appellant, by his next friend, against E. L. Woodley. The appellee, defendant below, presented his plea of privilege to be sued in the county of his residence, which plea of privilege the trial court sustained and ordered the cause transferred to the district court of Dallas county. From this order an appeal has been taken to this court.

The plaintiff's petition was filed in the district court of Hockley county on August 10, 1929. The September term of that court began on the first Monday in September, 1929. On August 31, 1929, the defendant filed his plea of privilege to be sued in Dallas county, the county of his residence.

It appears from plaintiff's original petition that plaintiff alleges the residence of the defendant to be in Dallas county. While the plaintiff does allege that the defendant was the owner and operator of certain farms in Hockley county and that one Eugene Walden, an employee and agent of the defendant, operated and drove a certain motortruck and that the plaintiff, a child of tender years, etc., was permitted to enter upon said truck and was riding on the running-board of the truck and was thrown or fell from same, there were also appropriate allegations charging negligence on the part of plaintiff's agent and of the injury to the plaintiff, yet nowhere is there a positive averment that the accident in which the plaintiff was injured occurred in Hockley county. The question whether or not the pleading by intendment charges that the injury occurred in Hockley county, so as to give the district court of that county jurisdiction, might arise were it not for the failure of plaintiff to file his controverting affidavit in due time.

Article 2007, R. C. S., provides as follows:

"A plea of privilege to be sued in the county of one's residence shall be sufficient if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that `no exception to exclusive venue in the county of one's residence provided by law exists in said cause'; and such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue. If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending."

It will be seen that this article provides expressly that such plea shall be prima facie proof of defendant's right to change of venue. However, if the plaintiff desires to controvert the plea of privilege, he shall, within five days after appearance day, file a controverting plea under oath, setting out the facts, etc. As stated above, this suit was filed returnable to the September, 1929, term of the district court of Hockley county. Before that term of court began, the defendant filed his plea of privilege, consequently the plaintiff's controverting affidavit should have been filed within five days after the appearance day of that term, September term, 1929. As a fact, the plaintiff did not file the controverting affidavit until the next term of the court, which was too late. The defendant's plea of privilege, having been filed in due time and not having been controverted within five days after the appearance day of the September, 1929 term, the only thing that the court was called on to do was to transfer the case.

In the case of Griffin v. Linn, 3 S.W.(2d) 148, this court held the contrary to the proposition here laid down, holding that the provision intended to require the filing of the controverting affidavit within five days after the appearance day of the succeeding term of court. In this we followed the decision of the Fort Worth court in the case of Sibley v. Continental Supply Co., 290 S. W. 769.

In the case of Clark v....