Devereaux v. Rowe

• Decision Date: 23 February 1927
• Docket Number: (No. 7718.)
• Citation: 293 S.W. 207
• Parties: DEVEREAUX et al. v. ROWE.
• Court: Texas Court of Appeals

293 S.W. 207

DEVEREAUX et al. v. ROWE.

(No. 7718.)

Court of Civil Appeals of Texas. San Antonio.

February 23, 1927.

Rehearing Denied March 23, 1927.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by S. E. Rowe against T. B. Devereaux and another. From an order overruling their pleas of privilege, the defendants appeal. Reversed and rendered.

Henry S. Paulus, of Yoakum, and Ball & Seeligson, of San Antonio, for appellants.

Lewright & Lewright and W. M. Groce, all of San Antonio, for appellee.

FLY, C. J.

Appellee brought suit against J. D. Gray and T. B. Devereaux for damages arising from personal injuries inflicted on him through the negligence of appellants. J. D. Gray filed his plea of privilege to be sued in Dewitt county, where he resided. The plea was contested by appellee, and T. B. Devereaux filed a plea of privilege to be sued in Gonzales county, which was also contested. The court, upon a hearing, overruled the plea of Gray because he filed a motion to quash the service against him, thereby waiving the plea of privilege and overruled the plea of Devereaux on the ground that he had his domicile in Bexar county. This appeal has been perfected from that order of the court.

It is admitted by appellee that J. D. Gray has never been a resident of Bexar county, but is and has been a resident of Dewitt county. It is also admitted that appellee rests his case on the proposition that Devereaux is a resident of Bexar county. The facts show that Devereaux had made his home in Nixon, Gonzales county, for seven years; that for the last ten months he had been hoisting engineer for L. T. Wright Company in San Antonio, and has finished that work and been transferred to Corpus Christi, and was about to leave for that place. His wife lives in Nixon, with their four children. One of the children is attending school in Nixon. Devereaux has for several years, including 1927, paid his poll tax, as well as his wife's poll tax, in Nixon. Mrs. Devereaux has never lived in San Antonio. She has only paid short visits to her husband, the longest visit being for one week. They have never intended to make their residence in San Antonio, but in Nixon. Devereaux did not file his plea of privilege to the March term, 1926, of the district court, but filed it to the succeeding May term.

If Devereaux was a resident of Bexar county and Gray was properly joined with him for the commission of a tort, then Bexar county had jurisdiction over Gray, although his residence was in Dewitt county. If, however, Devereaux did not reside in Bexar county, then Gray's plea of privilege should have been sustained, unless he waived his privilege by filing a motion to quash the citation.

Article 2048, Rev. Civ. Statutes of 1925, provides:

"If the citation or service thereof is quashed on motion of the defendant, the case may be continued for the term, but the defendant shall be deemed to have entered his appearance to the succeeding term."

It will be noted that the statute does not provide that the defendant will be deemed to be duly cited for the succeeding term, but "shall be deemed to have entered his appearance to the succeeding term of the court." The difference is apparent. Formerly under both civil and common law an appearance meant an actual coming into court, a reminder of which is seen in the pleading "now comes the defendant," etc. Entering an appearance in open court under our statute may be made by a defendant in person, by attorney, or a duly authorized agent. Such appearance shall be noted on the docket by the judge and entered in the minutes. Being cited would not constitute an appearance, but such appearance brings the defendant into court, no matter for what purpose he may appear, except for pleading privilege. The statute cited as to the effect of securing the quashing of citation or service is to continue the case for the term and entering the appearance of the defendant to the succeeding term. There is no exception in case he may desire to file a plea of privilege, but the "defendant shall be deemed to have entered his appearance to the succeeding term of the court." The appearance is not a restricted one, but is a general appearance. If the motion to quash had been overruled, the defendant would have been in court and could have been required to answer or suffer judgment by default. Piano Co. v. Anderson, 97 Tex. 432, 79 S. W. 516.

When the motion to quash was granted it merely gave a continuance to the defendant, and at the next term he would be compelled to answer or suffer a default. He had made an appearance by filing a motion to quash the citation at a former term of the court. This has been authoritatively settled by the Supreme Court in Railway v. Morris, 68 Tex. 49, 3 S. W. 457, in which it is said in regard to article 2048, then article 1243:

"The result of this rule is that, whenever he appears and moves to quash the service, he is considered as having appeared to the merits of the next term, whether his motion be sustained or overruled. If properly overruled, he is in court from the time of the service. If improperly overruled, and the cause be continued, he is not prejudiced by the action of the court, for the reason that the continuance is the only advantage he would have obtained if his motion had been granted."

Again, in the case of York v. State, 73 Tex. 651, 11 S. W. 869, a resident of Missouri who had not been legally cited appeared and presented a motion to quash the citation, which was overruled, and the court said:

"That appellant made at least a special appearance in the court below cannot be questioned, and it was not a compulsory appearance, for no process had been served on him which compelled him to appear or take the consequences of default, nor had any of his property been seized under process which made it necessary for him to appear in order to protect it or his rights in it. * * * The inquiry arises, whether the revised statutes have given to a special appearance by a defendant the full effect in respect to jurisdiction which before their adoption was given only to a general appearance."

After quoting the law the court said:

"Before the enactment of...