Cobb Grain Co. v. H. H. Watson Co.

• Decision Date: 20 October 1926
• Docket Number: (No. 7023.)
• Citation: 290 S.W. 842
• Parties: COBB GRAIN CO. et al. v. H. H. WATSON CO.
• Court: Texas Court of Appeals

290 S.W. 842

COBB GRAIN CO. et al. v. H. H. WATSON CO.

(No. 7023.)

Court of Civil Appeals of Texas. Austin.

October 20, 1926.

Rehearing Denied November 10, 1926.

Writ of Error Granted by Supreme Court January 12, 1927.

Appeal from Dallas County Court at Law, No. 1; W. N. Coombes, Judge.

Action by the H. H. Watson Company against the Cobb Grain Company and others. From a judgment granting plaintiff a nonsuit before passing upon defendants' plea of privilege, defendants appeal. Reversed and remanded, with instructions.

Clark & Clark, of Dallas, for appellants.

Geo. Sergeant, of Dallas, for appellee.

BAUGH, J.

The only issue presented in this case is whether the trial court erred in permitting appellee, plaintiff below, in the county court of Dallas county, Tex., after the plea of privilege had been filed by the defendants J. F. Cobb and A. G. Cox to be sued in Hale county, where both resided, to take a nonsuit without passing upon said plea of privilege. The plea of privilege was in proper form, seasonably filed, and at a second term of said court after same was filed the case was called for trial. No controverting affidavit was ever filed, and before any order transferring the case to Hale county was entered plaintiff asked permission to take a nonsuit, which the court granted.

It is the contention of appellants, defendants below, that, in the absence of a controverting affidavit, the trial court, so far as said plea of privilege was concerned, had jurisdiction to enter but one order, i. e., an order transferring the case to the county court of Hale county, Tex. See article 1903, R. S. 1911, as amended in 1917 (article 2007-2008, R. S. 1925). Appellee, on the other hand, contends that under article 1955, R. S. 1911 (article 2182, R. S. 1925), the trial being before the court, it had a statutory right to take a nonsuit "at any time before the decision is announced."

It is unnecessary for us to here enter into a discussion of the evils sought to be prevented by the 1917 amendment to article 1903 of R. S. 1911. A very full and able discussion of this amendment by Judge Powell, together with a review of numerous cases involving it, is found in Craig v. Pittman & Harrison Co. (Tex. Com. App.) 250 S. W. 667. In that case it was expressly held that, when a plea of privilege is filed, unless a controverting affidavit be filed, the only jurisdiction the court has is to enter an order transferring the case. See, also, Boach & Son v. Ellis & Co. (Tex. Civ. App.) 278 S. W. 243, and authorities there cited. Such a holding may seemingly be in conflict with article 1955, R. S. 1911, giving to the plaintiff the right to take a nonsuit, but, if so, the 1917 amendment to article 1903 must, as to the particular plea, prevail. As stated by Judge Powell in Craig v. Pittman & Harrison Co.:

"The statute under consideration is specific legislation affecting one particular plea. In so far as it may be inconsistent with former general laws and rules announced by the courts, it must replace them."

The question of venue when a plea has been filed has been made by the statute a separate and distinct proceeding from a trial upon the merits. When controverted, that issue is tried as a separate issue. A final judgment is entered upon it, and an appeal therefrom can be taken by either party. The judgment of the court thereon becomes res adjudicata on the issue of venue. Old v. Clark (Tex. Civ. App.) 271 S. W. 183; Citizens' State Bank v. Alexander (Tex. Civ. App.) 274 S. W. 184. The right of a party to be sued in the county of his residence is a substantial and a valuable right which he may have determined before his case is tried upon its merits. In filing his plea of privilege he raises that issue, and in the absence of a controverting affidavit his sworn plea makes out a prima facie case in his favor. Though a defendant on the merits, with respect to this particular issue he becomes a plaintiff asking affirmative relief. Not having controverted appellants' pleas of privilege, appellee could not deprive the appellants of the affirmative relief they sought of having the issue of venue first finally determined. To hold otherwise...