Davis v. Southland Cotton Oil Co.

• Citation: 259 S.W. 298
• Decision Date: 19 January 1924
• Docket Number: (No. 8943.)
• Parties: DAVIS et al. v. SOUTHLAND COTTON OIL CO.
• Court: Court of Appeals of Texas

259 S.W. 298

DAVIS et al. v. SOUTHLAND COTTON OIL CO.

(No. 8943.)

Court of Civil Appeals of Texas. Dallas.

January 19, 1924.

Rehearing Denied March 1, 1924.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

Action by the Southland Cotton Oil Company against N. G. Davis and others. From a judgment overruling his plea of privilege, named defendant appeals. Reversed and remanded, with instructions.

Benson & Benson, of Bowie, for appellant.

C. M. Supple, of Waxahachie, for appellee.

LOONEY, J.

This appeal is from an order of the district court of Ellis county overruling a plea of privilege. The appellee, Southland Cotton Oil Company, sued the appellant N. G. Davis and his partner, A. A. Howell, who were conducting a ginning business at Jayton, Kent county, Tex., under the style of Davis & Howell, to recover overpayments by appellee to appellant, by reason of short weights and inferiority in the grade of cotton seed purchased by appellee from Davis & Howell.

The defendant Davis was alleged to be a resident citizen of Montague county, and the defendant Howell was alleged to be a resident of the state of Oklahoma. Both were duly cited to answer at the term of the district court of Ellis county beginning the first Monday in March and continuing in session until the first Monday in June; the defendant Howell was served by nonresident notice.

The defendants filed on the first day of the term of court, in due form and in all respects in compliance with article 1903, Revised Statutes, pleas of privilege in which they prayed that the venue of the case be changed to the district court of Montague county. When these pleas were filed, the record shows that permission to file the same was obtained, but no further action of the court was taken with regard thereto until June 1, 1922, when an order was entered by the court continuing the cause to the next term, which began the first Monday in June, 1922.

Prior to the order continuing the case, and on May 30, 1922, no contest of the pleas of privilege having been filed by the appellee, the defendants, through their attorneys, presented to the clerk of the court, and had filed, the form of an order to be entered sustaining the pleas of privilege and transferring the case to the district court of Montague county. This order was never signed or approved by the judge, nor does it appear that it was brought to his attention. On June 1, 1922, the appellee filed, in due form, a contest of the pleas of privilege, and the court thereafter, and on same day, continued the cause as above stated, without prejudice to the pleas of privilege or controverting affidavit.

The parties having failed to agree on a date for the hearing, the district judge, on June 15, 1922, set the same for July 3d, and directed that the defendants be served with notice accordingly. On the day set for the hearing, the pleas and the contesting answer of the appellee were heard, evidence adduced, and pleas overruled, to which action of the court the appellant N. G. Davis, alone, has appealed and assigned errors.

The appellant, by appropriate assignments and propositions, challenges the correctness of the action of the court below, and insists that appellee, by reason of its failure to contest the plea of privilege in time to dispose of the plea and contest before the term of court came to an end, waived its right to contest; that the trial court was without jurisdiction to enter the order continuing the case from the March term to the June term of court, but, instead, should have entered an order changing the venue of the case to Montague county.

We believe appellant's contention is correct, and that the error pointed out requires a reversal of the case.

A plea of privilege is a dilatory plea within the meaning of the statutes, and its disposition is controlled by article 1910, which reads as follows:

"Pleas to the jurisdiction, pleas in abatement, and other dilatory pleas and demurrers, not involving the merits of the case, shall be determined during the term in which they are filed, if the business of the court will permit."

Rule 24 of the district and county courts on the same subject is as follows:

"All dilatory pleas and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of parties with the consent of the court; and all such pleas and motions shall be first called and disposed of before the main issue on the merits is tried."

Formerly the burden was upon the party insisting on a plea of privilege to bring it to the attention of the court during the term at which it was filed, and support it with proof, under the penalty of waiving the plea if he should fail to so prosecute it during the first term.

The Supreme Court, in construing the article of the statute and rule of court above quoted, in Aldridge v. Webb & Hill, 92 Tex. 122, 46 S. W. 224, in an opinion by Judge Denman, used the following language:

"We think, as indicated above, that the law imposes upon the party relying upon such a plea the duty of demanding the action of the court thereon at the time the statutes and rule above quoted require it to act in the particular case, and that his failure to do so is a waiver thereof. When he brings the matter before the court, it may be continued, or the court may make such orders as the condition of its docket may render necessary, and there will, of course, be no waiver."

To the same effect is the opinion of the Commission of Appeals in Texas Packing Co. v. St. Louis S. W. Ry. Co., 227 S. W. 1095.

The statute regulating the trial and disposition of pleas of privilege was radically changed by the amendment to article 1903 adopted in 1917 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903) by the addition of the following entirely new provision:

"* * * And such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue. If, however, the plaintiff desires to controvert the plea of privilege, he shall 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. Upon the filing of such controverting plea the judge or the justice of the peace shall note on same a time for a hearing on the plea of privilege; provided, however, that the hearing thereon shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten full days exclusive of the day of service and day of hearing. * * *" Under the law as it formerly read, the burden in all respects was upon the party relying on the plea of privilege to so prosecute the same as to dispose of the matter during the term of court at which it was filed, and in case of failure in this respect he lost the benefit of the plea. Under the provisions of the amendment just quoted, the burden is in all respects cast upon the party opposing the plea, and, if he desires to contest the same, he shall do so under oath, setting out specifically the fact, or facts, relied upon to confer venue of such cause on the court where the case is pending, of which contest the defendant...