Empire Life Ins. Co. of America v. State
| Decision Date | 07 March 1973 |
| Docket Number | No. 12029,12029 |
| Citation | 492 S.W.2d 366 |
| Parties | EMPIRE LIFE INSURANCE COMPANY OF AMERICA et al., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John Gano, Jamail & Gano, Houston, Edward T. McFarland, Lufkin, for appellant.
John L. Hill, Atty. Gen., John H. Banks, Asst. Atty. Gen., Austin, for appellee.
O'QUINN, Justice.
Empire Life Insurance Company of America, Credit Factoring, Inc., James C. (Jimmy) Day, the Day Trust, and James Wohlenhaus, who were defendants below, bring this appeal from action of the district court of Travis County overruling appellants' pleas of privilege to be sued in their respective counties of residence.
The judgment and order of the trial court overruling such pleas of privilege will be affirmed.
This cause encompasses two suits originally filed separately by the State and later consolidated by the trial court.
Both petitions, each in the nature of Quo warranto, were verified.
In the first suit, filed in district court of Travis County in April of 1972, the State sought to enjoin Credit Factoring, Inc., and its officers and representatives from further operation and to revoke the corporate charter. The State alleged as a basis for its suit certain transactions between the corporation and other entities and persons, including James C. (Jimmy) Day, president of the company, and the Day Trust. The docket number of this cause in district court was 196,856.
In the second suit, filed in district court of Travis County in June of 1972, the State named as parties defendant Empire Life Insurance Company of America, Credit Factoring, Inc., Shearn Moody, Jr., W. L. Moody and Company, Bankers, Unincorporated, James C. (Jimmy) Day, the Day Trust, and James Wohlenhaus. By this suit the State sought to enjoin all defendants from conducting insurance or other business of Empire State and Credit Factoring and to revoke 'all charters, franchises, permits and certificates' issued by the State to the insurance company and the corporation. The docket number of this cause in district court was 198,374.
The district court, in an order entered October 11, 1972, consolidated the first case (No. 196,856) with the second suit under docket number 198,374.
We considered another interlocutory appeal in this lawsuit, and affirmed in part the action of the district court in issuing a mandatory injunction against certain of the defendants, in an opinion dated December 6, 1972. (Day v. State, Tex.Civ.App., 489 S.W.2d 368; writ applied for February 26, 1973, Supreme Court docket No. B--3866).
Appellants, under twenty points of error in this appeal, take the position, stated briefly, that the State's affidavits controverting the pleas of privilege were legally insufficient because made by attorneys for the State and by the Commissioner of Insurance who were without personal knowledge of the facts, but who relied upon audits and records not made by them personally.
The State's second suit (No. 198,374) was filed June 23, 1972. Thereafter, on July 17, Empire Life Insurance Company, Shearn Moody, Jr., nad Moody and Company filed their original answer, in which Moody, individually, and Moody bankers excepted to authority of the Attorney General to prosecute the action against them for want of statutory or other authority, and all defendants, including Empire Life, joined in a general denial.
Empire Life Insurance Company filed its plea of privilege to be sued in Dallas County on July 24, 1972, seven days following the filing of its original answer. By filing its answer prior to the plea of privilege, Empire Life Insurance waived its plea of privilege. Pleas of privilege must be filed in due order of pleading and when not so filed the plea is waived. Westbrook v. Bradford, 429 S.W.2d 638, 639 (Tex.Civ.App. Austin 1968, no writ); Ware v. Texboro Cabinet Corporation, 350 S.W.2d 47, 49 (Tex.Civ.App. Texarkana 1961, writ dsmd.); Rules 84, 85, Texas Rules of Civil Procedure.
The State's first suit (No. 196,856) was filed April 14, 1972, and named as defendant only Credit Factoring, Inc. On July 26 Credit Factoring filed its plea of privilege to be sued in Dallas County. After the second suit was filed in June of 1972, and prior to consolidation of the two cases, Credit Factoring, Inc., James C. (Jimmy) Day, individually and...
To continue reading
Request your trial
-
Sumrall v. Moody, 79-1034
...Moody v. State, 520 S.W.2d 452 (Tex.Civ.App.1975); Moody v. Jones, 519 S.W.2d 536 (Tex.Civ.App.1975); Empire Life Ins. Co. v. State, 492 S.W.2d 366 (Tex.Civ.App.1973); Day v. State, 489 S.W.2d 368 (Tex.Civ.App.1972, n. r. e.).2 Ex parte Shearn Moody, cert. denied, 434 U.S. 835, 98 S.Ct. 124......
-
Moody v. Empire Life Ins. Co. of America
...however, has occurred. See: Day v. State, 489 S.W.2d 368 (Tex.Civ.App. Austin 1973, writ ref'd n. r. e.); Empire Life Insurance Company of America v. State, 492 S.W.2d 366 (Tex.Civ.App. Austin 1973, no writ); Moody v. Jones, 519 S.W.2d 536 (Tex.Civ.App. Austin 1975, no writ); Moody v. State......
-
DRG Financial Corp. v. Wade
...venue. Appellant observed the due order of pleading by filing its plea of privilege before its answer. Empire Life Insurance Company of America v. State of Texas, 492 S.W.2d 366, 367-68 (Tex.Civ.App. Austin 1973, no writ); Texas Securities Corporation v. Peters, 463 S.W.2d 263, 264 (Tex.Civ......
-
Moody v. State
...and Alabama. Some is reported in Day v. State, 489 S.W.2d 368 (Tex.Civ.App.--Austin, 1973, writ ref., n.r.e.); Empire Life Insurance Company of America v. State, 492 S.W.2d 366 (Tex.Civ.App.--Austin, 1973, no writ hist.); Moody v. Jones, 519 S.W.2d 536 (Tex.Civ.App.--Austin, 1975, no writ h......