C. C. Slaughter Co. v. Slaughter

• Decision Date: 28 October 1926
• Docket Number: (No. 1866.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 288 S.W. 1107
• Parties: C. C. SLAUGHTER CO. et al. v. SLAUGHTER.
• Court: Texas Court of Appeals

288 S.W. 1107

C. C. SLAUGHTER CO. et al. v. SLAUGHTER.

(No. 1866.)^*

Court of Civil Appeals of Texas. El Paso.

October 28, 1926.

Rehearing Denied December 16, 1926.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Action by W. B. Slaughter against the C. C. Slaughter Company and others. Judgment against the C. C. Slaughter Company and others, and they appeal. Reversed and remanded, with instructions.

See, also, 276 S. W. 724.

J. Hart Willis, of Los Angeles, Cal., Gresham, Willis & Freeman and John W. Pope, all of Dallas, for appellants.

W. H. Lipscomb, of Fort Worth, amicus curiæ.

Watson & Chapin, of San Antonio, for appellee.

HIGGINS, J.

This is an appeal by C. C. Slaughter Company and others from a final judgment rendered against them in favor of W. B. Slaughter upon the trial of a case upon its merits at the April term, 1925, of the district court of Palo Pinto county. By order of the Supreme Court the appeal was transferred from the Eleventh Court of Civil Appeals at Eastland to this court.

By order of the Court of Civil Appeals at Eastland there has been sent to the clerk of this court the transcript of an appeal in that court, numbered 32, upon its docket, entitled C. C. Slaughter Co. et al. v. W. B. Slaughter. This transcript, together with a certified copy of the opinion rendered upon that appeal by the Eastland court, by leave of this court, has been filed with the record of the present appeal pending in this court. The opinion of the court at Eastland in cause No. 32 was rendered November 6, 1925, and is reported in 284 S. W. 350. That opinion, as well as the transcript mentioned, discloses that in the case now before this court a plea of privilege was filed by certain of the defendants therein who are appellants here setting up their right to be sued in Dallas county. A controverting affidavit was filed by W. B. Slaughter and at the fall term, 1924, the trial court first entered an order sustaining the plea of privilege. A few days later the order was amended so as to condition the transfer to Dallas county, upon the payment of certain costs by the defendants. Later at the same term the trial court set aside its amended order and made an order retaining jurisdiction of the case. From the last-mentioned, order the defendants attempted to appeal. That appeal is the one above mentioned, No. 32, upon the docket of the Eastland court. The Eastland court dismissed the appeal holding that no final judgment had been rendered upon the plea of privilege; that the plea of privilege and controverting affidavit remained undisposed of upon the trial court docket. This ruling of the Eastland court is final and the law of that appeal.

The judgment now before this court for review is the final judgment upon the merits in the same case. From what has been said it is apparent the trial court undertook to try this case upon its merits and render final judgment without having first disposed of the plea of privilege. Under the authorities the court was without authority so to do unless the plea had been waived. The matter was jurisdictional. Bishop v. Galbraith (Tex. Civ. App.) 246 S. W. 416; Witt & Sons v. Stith (Tex. Civ. App.) 265 S. W. 1076; Henry v. Henry, 113 Tex. 124, 251 S. W. 1038; Craig v. Pittman & Harrison (Tex. Com. App.) 250 S. W. 667; Schumacher v. Dolive, 112 Tex. 564, 250 S. W. 673; Davis v. Southland Cotton Oil Co. (Tex. Civ. App.) 259 S. W. 298; Green v. Brown (Tex. Civ. App.) 271 S. W. 394; Doak v. Biggs (Tex. Civ. App.) 235 S. W. 957.

Appellee asserts the appellants waived their plea of privilege by proceeding to trial upon the merits. The Supreme Court has held that an appeal from an order overruling a plea of privilege does not suspend trial of the case upon its merits. Allen v. Woodward, 111 Tex. 457, 239 S. W. 605, 22 A. L. R. 1253. To the same effect is Martin v. McKean & McNeal (Tex. Com. App.) 257 S W. 241. Under this ruling appellants could not be considered as having waived their plea of privilege and attempted appeal from the order of the court thereon, which appeal was then pending and later dismissed by the Eastland court, for it is manifest all of the parties and the trial court thought the plea had been overruled and so construed the previous order of the court.

But, in addition to this, the record discloses that appellants reserved all of their rights, for by bill of exceptions it is shown that when the case was called for trial the defendants excepted to trial at that time because they had filed a plea of privilege, and from the court's ruling thereon they had appealed, and their announcement was made subject to the plea "and without in any way waiving...