Davis v. Battles
| Decision Date | 07 March 1945 |
| Docket Number | No. A-468.,A-468. |
| Parties | DAVIS et al. v. BATTLES. |
| Court | Texas Supreme Court |
Suit by Travis J. Battles, receiver, against Cecil Davis and others, for assessment on an insurance policy. From a judgment overruling defendants' pleas of privilege to be sued in county other than county where suit was instituted, defendants appealed. The Court of Civil Appeals, 185 S.W.2d 177, reversed and remanded with instructions, and certified a question to the Supreme Court.
Certified question answered.
Cunningham, Lipscomb & Cole, of Bonham, for petitioners.
Herbert Marshall and Marion B. Solomon, both of Dallas, for respondent.
Rule 86 prescribes the form of a plea of privilege to be filed in order to raise the question of the right of the defendant to be sued in the county of his residence and the form of the contest to be filed by the plaintiff, and further provides that "such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue."
Rule 169 provides that at any time after the defendant has made appearance in the case, or time therefor has elapsed, a party may, by request in writing, require the other to admit the truth of any relevant matter of fact in issue, and the matters of which admission is requested shall be deemed admitted, unless within the period and under the circumstances named in the rule, the party to whom the request is directed shall deliver or cause to be delivered to his opponent a sworn statement either denying specifically the matters of which admission is requested, or setting forth in detail reasons why he cannot truthfully either admit or deny the matter.
In the above cause plaintiff sued the defendants and alleged the existence of a partnership, and sought recovery on a written contract executed by the defendants and performable in the county where the suit was filed. Defendants filed a plea to the venue, and under oath specifically denied the existence of the partnership and the execution of the written contract. Plaintiff filed a controverting affidavit, in form, alleging the existence of the partnership and the execution of the written contract. Plaintiff then invoked the provisions of Rule 169, and called upon the defendants to admit or deny the existence of the partnership as well as other facts showing the execution of the written contract.
The Court of Civil Appeals at Dallas has certified to this Court the question as to whether or not the provisions of Rule 169 are applicable and may be invoked upon the trial of a contested plea of privilege under the circumstances above indicated.
The Court of Civil Appeals seems to have been of the opinion that there was a conflict between the provisions of Rule 86 and Rule 169....
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...v. Ross & Masterson, 106 Tex. 522, 533, 172 S.W. 711; State v. Standard Oil Co., 130 Tex. 313, 333, 107 S.W.2d 550; Davis v. Battles, 143 Tex. 378, 186 S.W.2d 60; Croan v. McKinney, Tex.Civ.App., 185 S.W.2d 768, 771, affirmed, McKinney v. Croan, 144 Tex. —, 188 S.W.2d The Court of Civil App......
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...privilege by appellant was an appearance in the case for all purposes. O'Quinn v. Tate, Civ.App. Er.Ref., 187 S.W.2d 241; Davis v. Battles, 143 Tex. 378, 186 S.W.2d 60. In such situation the trial court is authorized to proceed and render judgment after the overruling of the plea of privile......
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...by appellant was an appearance in the case for all purposes. O'Quinn v. Tate, Civ.App., Er.Ref., 187 S.W.2d 241; Davis v. Battles, 143 Tex. 378, 186 S.W.2d 60. In such situation the trial court is authorized to proceed and render judgment after the overruling of the plea of privilege withou......
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