Fielder v. Parker

• Citation: 119 S.W.2d 1089
• Decision Date: 17 June 1938
• Docket Number: No. 1892,1892
• Parties: FIELDER v. PARKER.
• Court: Court of Appeals of Texas

119 S.W.2d 1089

FIELDER v. PARKER.

No. 1892

Court of Civil Appeals of Texas. Eastland.

June 17, 1938.

Rehearing Denied September 16, 1938.

Appeal from District Court, Erath County; Sam M. Russell, Judge.

Suit by J. L. Parker, receiver, against J. R. Fielder and others to enjoin an advertised sale of land levied on under an execution. From a judgment overruling pleas of privilege filed by defendants, the named defendant appeals.

Affirmed.

Cox & Hayden, of Abilene, for appellant.

C. O. McMillan, of Stephenville, and Lem Billingsley, of Fort Worth, for appellee.

FUNDERBURK, Justice.

J. L. Parker, as receiver for H. H. Hardin, brought this suit against J. R. Fielder, a resident of Taylor County, and F. L. Freeland and Frank Sloan, Sheriff and Deputy Sheriff, respectively, of Stephens County, residents, of course, of said County, to enjoin an advertised sale of land in Stephens County, levied upon under an execution against Hardin's former receiver, issued out of the District Court of Taylor County, following a final judgment for debt. It was alleged substantially that the receivership suit was pending in the District Court of Erath County and that the land about to be sold under the process aforesaid was in the legal custody of the plaintiff in his said capacity as receiver. The style and number of the receivership suit was W. J. Oxford v. H. H. Hardin et al., No. 6530, and the style and number of the instant suit was J. L. Parker, Receiver, v. J. R. Fielder et al., No. 7114. Each defendant filed a plea of privilege—Fielder to be sued in Taylor County, and Freeland and Sloan to be sued in Stephens County. Each such plea was in compliance with the provisions of R.S.1925, Art. 2007. No controverting pleas were filed by plaintiff. Plaintiff excepted to the several pleas of privilege and the exceptions were sustained; the judgment declaring the conclusion of the court to be that "said pleas of privilege are not well taken and should be denied and overruled, and that plaintiff's exceptions thereto should be sustained." The order was "that the pleas of privilege filed herein by said defendants be, and the same are hereby in all respects overruled and denied."

The defendant Fielder has appealed.

Consistently with the court's action in sustaining the exceptions to the pleas of privilege the order should have provided a dismissal of said pleas rather than overruling or denying same. No point is made of this, but nevertheless an ambiguity as to the nature of the court's action results. It appears from the briefs with reasonable certainty, however, that the action intended was such as was appropriate to the sustaining of exceptions to the pleas and not an adjudication of same upon their merits. There being, as it happens, little practical difference, we shall regard the order of the court as a dismissal of the pleas of privilege.

It is our conclusion that the pleas of privilege were disposed of correctly, but upon a wrong theory of law. We think the proposition may be regarded as established by the decisions that in any suit brought in any county of Texas and wherein there is a defendant who is a nonresident of the county—but who resides in the state—if such defendant files a statutory plea of privilege in compliance with said Art. 2007, the filing of a controverting plea by the plaintiff is essential to raise either an issue of law or fact, as to the proper venue of such suit. In the absence of any controverting plea, or waiver of a plea of privilege, the only authorized action of the court, in so far as it is determinative of the question of venue, is to sustain the plea of privilege and transfer the case to the proper county, and court therein, having jurisdiction.

A plea of privilege conforming to the provisions of Art. 2007 is not subject to exceptions, general or special. There are some decisions which purport to recognize an exception to the rule as thus stated. The leading case, perhaps, in recognition of such exception is Yates v. State, Tex.Civ.App., 3 S.W.2d 114. Of the decisions following it may be mentioned: Barnum v. Lancaster Hardware Co., Tex.Civ.App., 40 S.W.2d 1103; Thompson v. Pure Oil Co., Tex.Civ.App., 113 S.W. 2d 662; Schoellkopf Co. v. Daves, Tex. Civ.App., 71 S.W.2d 340; McCook v. Amerada Pet. Corp., Tex.Civ.App., 73 S. W.2d 914; Universal Credit Co. v. Boling, Tex.Civ.App., 103 S.W.2d 253 (changed on rehearing, Id., Tex.Civ.App., 108 S.W.2d 836); Miller v. Burnet Merc. Co., Tex.Civ.App., 65 S.W.2d 505; Lloyds America v. Lloyds Southwest Insurers, Tex.Civ.App., 56 S.W.2d 477. In principle, these decisions, we think, are in conflict with Duffey v. Cole Pet. Co., 117 Tex. 387, 5 S.W.2d 495; Curlee Clothing Co. v. Wickliffe, 126 Tex. 573, 91 S.W.2d 677; Johnson v. Dallas C. & W. Co., 120 Tex. 27, 34 S.W.2d 845; American Fruit Growers v. Sutherland, Tex.Civ.App., 50 S.W.2d 898; Oakland Motor Car Co. v. Jones, Tex.Civ.App., 29 S.W.2d 861; First Nat. Bank v. Cage, Tex.Civ.App., 32 S.W.2d 500, and many other decisions to the same effect. In Universal Credit Co. v. Boling, supra, the Fort Worth Court of Civil Appeals in its original opinion gave controlling effect to Yates v. State, supra, and that line of decisions. Upon application for mandamus to require certification of the question to the Supreme Court, the latter, because of some defect in the petition for mandamus, could not grant the writ, but in a per curiam opinion expressed that court's disagreement with the decision of the Court of Civil Appeals. Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867. The court repeated what, in effect, had often been declared before [page 868]: "The plea of privilege in the form prescribed by article 2007 was prima facie proof of the defendant's right to a change of venue, and after its filing the burden was on the plaintiff both to allege and to prove as venue facts one of the following", enumerating the particular venue facts there involved. (Italics ours.) This statement is believed to be true of every case in which a statutory plea of privilege is duly filed, and not waived. In some cases, the "venue facts" (for definition of which, see Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91) may be many. In others, few. It is believed, however, that there is at least one venue fact in every case. In some of the many exceptions to the general rule of venue prescribed in R.S.1925, Art. 1995, Vernon's Ann. Civ.St. art. 1995, one common "venue fact" is the fact of the nature of the suit or action. Oakland Motor Car Co. v. Jones, supra. Of the proof of such venue fact "plaintiff's petition is the best and all-sufficient evidence." Id., 29 S.W.2d 865; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. Even the petition need not be formally introduced in evidence. That requirement may be dispensed with, however, only because the court takes judicial knowledge of such pleading. It is believed that the extreme simplicity of proving this particular venue fact accounts wholly, or in a large measure, for the view that its proof involves a question of law rather than a question of fact. To our minds, the conclusion is inescapable that in any case in which the nature of the suit or action is a venue fact, such venue fact can no more be put in issue in the absence of pleading than can any other venue fact; the only pleading which can put such fact in issue being a controverting plea. No evidence whether same be the subject of judicial cognizance or not is available to determine a question of the proper venue of a suit, unless the issue involving such venue fact, the same as all others, be tendered by plaintiff's pleading —the Controverting Plea. This is but applying the rule declared in State of Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 22 S.Ct. 47, 46 L.Ed. 144, to the effect that the right of a court to exercise judicial knowledge is subordinate to requirements of procedure.

Let us suppose a case where a citizen of, say, Eastland County files suit in said county against Erath County. Under exception No. 19 the proper venue is in Erath County. The only venue fact under said exception is the nature of the action as being a suit against a county. Under the decision in Shell Pet. Co. v. Grays, 122 Tex. 491, 62 S.W.2d 113, Art. 2020, R.S.1925, is construed to provide for a transfer of such a cause to Erath County by the same procedure as is provided for a transfer to the county of a defendant's residence. See, also, Jefferies v. Dunklin, Tex.Sup., 115 S.W.2d 391. But, unless the question of proper venue be raised by pleading, it will be waived.

In practical effect, there is no difference in the operation of this rule between an exception which provides that under stated conditions the suit may be brought in a county other than that of the defendant's residence, and other exceptions which provide that suit must or shall be brought in a particular county. Although there is manifest in the decisions considerable misapprehension concerning this proposition, it should, we think, have been regarded as settled by those decisions which hold that such distinction would not operate to determine a matter of jurisdiction, but only of personal privilege. Bonner v. Hearne, 75 Tex. 242, 12 S.W. 38; DeLaVega v. League, 64 Tex. 205; Moody v. First Nat. Bank, Tex.Civ.App., 51 S.W. 523; Dittman v. Iselt, Tex.Civ.App., 52 S.W. 96; Valdez v. Cohen, 23 Tex.Civ.App. 475, 56 S.W. 375; Morris v. Runnells, 12 Tex. 175; Masterson v. Ashcom, 54 Tex. 324; Houston & T. C. Ry. Co. v. Graves, 50 Tex. 181; State v. Snyder, 66 Tex. 687, 18 S.W. 106; Walker v. Stroud, Tex.Sup., 6 S.W. 202; Lone Star Building & Loan Ass'n v. State, Tex.Civ.App., 91 S.W.2d 941; Lubbock Ind. School Dist. v. Lubbock Hotel Co., Tex.Civ.App., 62 S.W.2d 274; Wood v. Fulton Property Co., Tex.Civ. App., 90 S.W.2d 617; Pacific American Gasoline Co. v. Miller, Tex.Civ.App., 76 S.W.2d 833; Jackson v. First Nat. Bank, Tex.Civ.App., 290 S.W. 276; ...