Davis v. Petroleum Casualty Co., 2977.
| Decision Date | 05 April 1934 |
| Docket Number | No. 2977.,2977. |
| Citation | 70 S.W.2d 649 |
| Parties | DAVIS v. PETROLEUM CASUALTY CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Pecos County; C. R. Sutton, Judge.
Suit by Ralph Davis against the Petroleum Casualty Company to set aside an award of the Industrial Accident Board. From a judgment dismissing the case, plaintiff appeals.
Affirmed.
G. W. Dunaway, of Midland, for appellant.
Knox W. Gilmore, of Houston, for appellee.
This is a compensation case under the Workmen's Compensation Law of this state.
The facts alleged and shown on the hearing pertinent to the one question to be decided here and the action of the trial court thereon are as follows:
Appellant, Ralph Davis, brought this suit in the district court of Winkler county against appellee, Petroleum Casualty Company, to set aside an award of the Industrial Accident Board.
On the 16th day of October, 1931, Ralph Davis, while in the course of his employment and in the discharge of his duties as an employee of the Humble Oil & Refining Company, received the injuries complained of in the state of New Mexico.
In his petition appellant alleged that his contract of hiring took place in Winkler county, Tex.
Appellee, Petroleum Casualty Company, filed its verified plea in abatement on the ground that the district court of Winkler county was without jurisdiction to try the case, for the reason that the contract of hiring was not made in Winkler county, Tex., but was made in Pecos county, Tex., and that none of the other provisions of the statute with reference to the residence of appellant and the appellee prevail to give the district court of Winkler county jurisdiction of the suit, and prayed that the suit be dismissed and that appellee go hence without day and recover its costs.
The trial court heard evidence on the plea, and in the judgment states and so found that the contract of hiring took place in Pecos county, Tex., and for that reason the district court of Winkler county was without jurisdiction.
The court further said in the judgment that "under and by virtue of the authority of article 8307a and article 8306, Section 19, (the court) transfers said case to the District Court of Pecos County * * * for further procedure." Appellant excepted to that portion of the court's order transferring the case to Pecos county.
The case was transferred to the district court of Pecos county. In the Pecos county district court appellee filed its plea to the jurisdiction of the court on the ground that the Winkler county district court had no authority to do other than dismiss said case for want of jurisdiction, and for that reason the Pecos county district court was without jurisdiction.
The district court of Pecos county sustained the plea and dismissed the case, to which appellant excepted and duly prosecutes this appeal.
Opinion.Appellant submits that the court erred in sustaining the plea to the jurisdiction and dismissing the cause for the reasons:
First. The papers were all on file in the district court of Pecos county, in which county the cause could properly be tried, and the authority of the district court of Winkler county to transfer the case to Pecos county could not be inquired into, the order transferring the case while excepted to, no appeal was prosecuted therefrom.
Second. It was the duty of the district court of Winkler county under article 8307a, Revised Statutes (), to transfer the cause to Pecos county.
Third. Section 19 of article 8306, as amended by the Acts of the Forty-Second Legislature, c. 90, § 1 (Vernon's Ann. Civ. St. art. 8309, § 19), became purely a venue statute and is not jurisdictional.
It is clear that the Winkler county district court had no jurisdiction to try the case, and, unless the statute applicable to the facts of the case gave that court authority to transfer the case to the Pecos county district court, the fact that the court did so transfer the case and the papers of the case were transferred and filed in the Pecos county district court, and the further fact that the district court of Pecos county was the proper court in which to try the case, would not, we think, cause jurisdiction to attach to that court. If the Winkler county district court had no jurisdiction to try the case, and had no authority under the statute to transfer the case, what was done therein other than to dismiss the case was necessarily void, for the reason that judicial action without jurisdiction is void. Cleveland et al. v. Ward, 116 Tex. 1, 285 S. W. 1063, 1071, par. 16.
The order transferring the case, if done without authority, was not such final order or adjudication of the case from which an appeal would lie.
The only article of the statute having application to the facts of this case as presented here is subsection 1, section 19, article 8306, as amended by the Acts 1931, 42d Legislature, page 133, c. 90 . It reads as follows:
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...made, as the one filing such suit may elect." This statute is not merely a venue statute. It is jurisdictional, (Davis v. Petroleum Casualty Co., Tex.Civ.App., 70 S.W.2d 649), since it is conceded that jurisdiction did not lie under "b" a contract of hiring was essential to confer jurisdict......
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