Dorroh v. McKay

• Decision Date: 28 March 1900
• Citation: Dorroh v. McKay, 56 S.W. 611 (Tex. App. 1900)
• Parties: DORROH v. McKAY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W. 611

DORROH v. McKAY et al.¹

Court of Civil Appeals of Texas.

March 28, 1900.

Appeal from Upshur county court; D. A. Buie, Judge.

Action by J. M. Dorroh against McKay & Victory and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

J. P. Hart and F. S. Eberhart, for appellant. T. H. Briggs and R. W. Simpson, for appellees.

JAMES, C. J.

The action was brought in justice's court in Upshur county by appellant against McKay & Victory, who resided in the precinct, and against A. H. Ables, who resided in Kaufman county, and E. A. Bryan, who resided in Dallas county, Tex., for the value of a car of lumber. Ables and Bryan filed a plea of privilege, claiming their right to be sued in the counties of their residence, and alleging that McKay & Victory were not proper or necessary parties, but were fraudulently joined for the purpose of giving jurisdiction over these defendants. They also filed an answer, to have effect in the event their plea of privilege was not sustained. The justice heard and overruled the plea, and his judgment recites that "defendants then appeared in open court, and waived the ten-days service of citation, and voluntarily entered their appearance herein. All parties then announced ready for trial, waived a jury, and submitted all matters to the court," etc. From this judgment an appeal was taken, and at the first November term in that court the court ordered the case continued by agreement without prejudice to the pleas of privilege of Ables and Bryan. Subsequently the case took the following course: February term, 1898, continued generally; May term, 1898, continued generally; August term, 1898, continued for term; November term, 1898, no order; February term, 1899, no order; May term, 1899, no order. The case was tried at the August term, 1899, and resulted in a verdict for Ables and Bryan on their plea of privilege, and in favor of defendants McKay & Victory.

The main question upon which we are requested to pass is whether or not, upon the evidence, the plea of privilege had been waived, both by what had occurred in the justice's court and in the county court. It appears that plaintiff (appellant) himself asked the following charges, which were given: (2) "You are instructed that, if the defendants Ables and Bryan agreed to a continuance of this cause in this court, such agreement would amount to a waiver of their plea of privilege, and, if you find that such defendants so agreed to such continuance, then you will find against Ables and Bryan on that issue." (4) "If you believe from the evidence that McKay & Victory were and are proper and necessary parties to this suit, then you are instructed to find against the defendants Ables and Bryan on their plea of privilege." From this it is seen that plaintiff treated the privilege as one proper to be submitted to the jury, and we are of opinion that the only assignments of error that can have any weight are those which complain that the verdict in favor of the plea was against the evidence. All the testimony as to the issue of waiver of the plea of privilege is as we have above stated it. So far as what was done by these defendants in the justice's court is concerned, we think it clear they did nothing that constituted a waiver of their plea. They appeared for the purpose of filing such plea, and did so, had it acted upon, and, when it was overruled, they...