Doak v. Biggs

• Decision Date: 21 December 1921
• Docket Number: (No. 1273.)
• Citation: 235 S.W. 957
• Parties: DOAK et ux. v. BIGGS.
• Court: Texas Court of Appeals

235 S.W. 957

DOAK et ux. v. BIGGS.

(No. 1273.)

Court of Civil Appeals of Texas. El Paso.

December 21, 1921.

Error from District Court, Reeves County; Chas. Gibbs, Judge.

Suit by T. B. Biggs against C. H. Doak and wife. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

G. E. Lockhart, of Tahoka, for plaintiff in error.

Roy I. Biggs, of Pecos, for defendants in error.

HIGGINS, J.

The defendant in error, Biggs, brought this suit in the district court of Reeves county against Doak and wife, plaintiffs in error, to rescind a sale and conveyance of land made by the Doaks to Biggs, and to recover a cash payment of $500, made in part payment for the land, and to cancel a note given to cover the balance of the purchase price. Recovery was also sought of $150 as damages for attorney's fees paid to prosecute the suit. It was alleged that the plaintiffs in error had falsely and fraudulently represented to defendant in error in Pecos county that they had an absolute and perfect title to the land, and that the deed which they would execute would invest defendant in error with an absolute and indefensible title thereto, upon which misrepresentations defendant in error relied and acted; that, when defendant in error went to take possession of the land, he found it in possession of H. Heisterman, who had acquired title thereto by limitation. It was also alleged that the representations were made with knowledge by plaintiffs in error of the falsity thereof and for the purpose of deceiving.

Plaintiffs in error filed pleas of privilege claiming the right to be sued in Lynn county, Tex., where they resided. On April 26, 1921, defendant in error filed controverting pleas setting up that the fraud upon which the suit was based was committed in Reeves county and claiming venue in that county under the seventh subdivision of article 1830, R. S. On May 18, 1921, the pleas of privilege were heard and overruled by the court. The plaintiffs in error did not appear upon the hearing thereof, but the order overruling same recites that —

"Notice of the filing of said controverting pleas and the date for hearing on same was duly given defendants by delivery of copies of said controverting pleas, with notation of date for hearing same, to G. E. Lockhart, of Tahoka, Texas, attorney of record for both defendants, more than 10 days before this date."

Upon the same date judgment upon the merits was rendered in favor of defendants in error as prayed for. No answer to the merits was filed by plaintiffs in error, but the judgment recites due service and that they made default. Subsequently this writ of error was sued out. The record contains neither statement of facts nor bills of exception.

Error is assigned to the overruling of the pleas of privilege upon the ground that the plaintiffs in error had not been served with notice of the filing of the controverting pleas and the date set for hearing the same as by law required. The act of April 2, 1917 (article 1903, Vernon's R. S. 1918), made a radical change in the rules of law, practice, and procedure relative to pleas claiming the privilege of being sued in the county of one's residence. After prescribing the requisites of such pleas, the act further provides:

"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. If the parties agree upon a date for such hearing it shall not be necessary to serve the copy above provided for. * * *"

Under this act we are of the opinion that, before a plea of privilege can be heard and overruled, it is an indispensable requisite that the 10 days' notice required by the act be given in a manner authorized by law, or such notice waived by agreement; that such notice, or waiver, is a jurisdictional matter, and without it the court is without authority to hear and overrule the plea. Brooks v. Elevator Co., 211 S. W. 288. If this be not true, then the express proviso, "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," avails the defendant nothing.

The record in this case discloses that the defendants were not present upon the hearing of their pleas of privilege, and it is the well-established rule that in a direct attack by appeal from a judgment by default the usual presumption as to service will not be permitted. and in such cases the record must affirmatively show jurisdiction of the defendant, either by his appearance or by a proper service of process. No presumption can be indulged that there was some other and different service made than that which appears in the record. Bilby v. Rodgers, 58 Tex. Civ. App. 432, 125 S. W. 616; Burditt v. Howth, 45 Tex. 466; Johnson v. Galbraith. 17 Tex. 364; Blossman v. Letchford, 17 Tex. 648. And this is true, even though the judgment recites due service. Mayhew v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 957; Bomar v. Morris, 59 Tex. Civ. App. 378, 126 S. W. 663; Glascock v. Barnard, 58 Tex. Civ. App. 369, 125 S. W. 615; Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 697; Shook v. Laufer, 84 S. W. 277.

The only evidence of notice contained in the record of the filing of the controverting pleas and date set for hearing same is the following:

                                          "April 26, 1921
                

"Mr. G. E. Lockhart, Attorney at Law, Tahoka, Texas — Dear Sir: You will find attached hereto copy of controverting plea to plea of privilege of C. H. Doak, and also copy of controverting plea to plea of privilege of Mrs. Alice Doak, with notation on each of the date set for hearing same, in the case of B. T. Biggs v. C. H. Doak et al., No. 2084, in the district court of Reeves county, Texas. These copies are sent to you as the attorney for these defendants.

                  "Yours truly
                

"Receipt for Registered Article No. 1846. — 4/27/1921. From Roy I. Biggs, Pecos, Texas. Addressed to G. E. Lockhart, Tahoka, Texas. Postmark, Pecos, Tex., Apr. 27, 1921. Registered.

"Post Office Department, Official Business — Registered Article No. 1846. Return to Roy I. Biggs, Pecos, Texas. Return Receipt. Received from the postmaster the registered or insured article, the original number of which appears on the face of this card. G. E. Lockhart. Date of delivery, 4 — 30/21."

Upon the margin of the transcript and opposite the foregoing letter is the following notation:

"Copy of letter offered in evidence on plea of privilege by plff."

And...