Duval County Ranch Co. v. Drought

• Decision Date: 12 March 1924
• Docket Number: (No. 7110.)
• Citation: 260 S.W. 298
• Parties: DUVAL COUNTY RANCH CO. v. DROUGHT et al.
• Court: Texas Court of Appeals

260 S.W. 298

DUVAL COUNTY RANCH CO. v. DROUGHT et al.

(No. 7110.)

Court of Civil Appeals of Texas. San Antonio.

March 12, 1924.

Rehearing Denied April 9, 1924.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by H. P. Drought and another against the Duval County Ranch Company and others. Judgment for plaintiffs, and defendant named appeals. Affirmed.

Hicks, Hicks, Dickson & Bobbitt, of San Antonio, for appellant.

W. W. King, of San Antonio, for appellees.

FLY, C. J.

The appellees, H. P. Drought and A. H. Worden, sued W. K. Rose, J. E. Pickering, H. G. Nelms, and Duval County Ranch Company on six certain promissory notes executed to Francis Smith by said Rose, Nelms, and Pickering, and it was alleged that on August 18, 1919, A. H. Worden, independent executor of the estate of Francis Smith, deceased, assigned and transferred said notes to the Duval County Ranch Company, reserving an interest in each of the notes of $704, by written indorsement upon each note as follows:

"Pay to the order of Duval County Ranch Company of Houston, Tex., without recourse or guarantee of any kind, but upon the condition that when these notes are collected $704, with interest from maturity until paid, at the rate of 8 per cent. per annum, will be paid by said Duval County Ranch Company to the estate of Francis Smith. A. H. Worden, Independent Executor of the Estate of Francis Smith."

There was an allegation that the interest in the notes was afterwards transferred by the executor to H. P. Drought & Co., and the latter transferred said interest to appellees. In a second amended original petition it was alleged that the ranch company had canceled a certain lease and the said notes to Rose, Pickering, and Nelms, which was done without the knowledge or consent of appellees. The original petition was filed on July 12, 1922, and on September 18, 1922, appellant filed an answer in which it was sought to quash the citation, a special exception to the petition on the ground that the petition showed that the venue was in Harris county, where appellant resides, a general demurrer and general denial. This answer was never called to the attention of the court at the time it was filed, at least no action was had on it. On December 5, 1923, an amended answer was filed, in which the special exception as to venue was reiterated. No plea of privilege was ever filed; the change of venue being sought alone through the medium of special exceptions. The pleading was not verified by affidavit, and no controverting affidavit was required, because article 1903, as amended in 1917 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), contemplates a sworn plea and provides for a controverting affidavit.

In the order overruling the exception as to venue the court found that the exception was not called to the attention of the court until it was considered on December 5, 1923. In a bill of exceptions reserved by appellees it is stated that four or five terms passed and no action was taken in regard to the exception as to venue, and that three terms after appearance day the cause was continued at the suggestion of appellant, without any suggestion being made that the continuance was taken without prejudice to the exception. The court appended the following qualification to the bill of exceptions:

"That it has been the practice in this court not to call the appearance docket, on account of its great length, on appearance day, but to consider all matters which should have been called to the attention of the court on that day, as having been called to said court's attention, and that the said matters are actually considered when the business of the court permits."

The law names the second day of each term of the district or county court the appearance day, and permits a judgment by default, at any time after appearance day, against any defendant who has been cited and has not filed an answer. Articles 1934-1936. Article 1935 evidently contemplates a call of the docket on appearance day or as soon thereafter as may be practicable, and no custom or rule of any trial court can repeal or render nugatory that plain requirement of the statute, and the failure to call the appearance docket during a term would not excuse a failure of a litigant to call his plea of privilege to the attention of the court and permit it to pass without notice for several terms. Nueces County v. Gussett (Tex. Civ. App.) 213 S. W. 725. Such conduct would be a plain and unequivocal waiver of any attack on the venue, whether made through special exception or plea of privilege. Such exception or plea must be called to the attention of the court and disposed of at the appearance term, unless it appears that its consideration...