Galbraith v. Bishop

• Decision Date: 17 November 1926
• Docket Number: (No. 707-3949.)
• Parties: GALBRAITH v. BISHOP.
• Court: Texas Supreme Court

Page 1087

287 S.W. 1087

GALBRAITH v. BISHOP.

(No. 707-3949.)

Commission of Appeals of Texas, Section B.

November 17, 1926.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by H. B. Galbraith against F. Z. Bishop. An order of the district court denying defendant's motion to vacate a judgment against him was reversed and cause remanded by the Court of Civil Appeals (246 S. W. 416), and plaintiff brings error. Reversed and remanded, with directions.

Harbert Davenport and H. B. Galbraith, both of Brownsville, for plaintiff in error.

Thos. G. King, Birkhead & Lang and F. Stevens, all of San Antonio, and Kibbe & Perkins, of Brownsville, for defendant in error.

POWELL, P. J.

We quote as follows from the opinion of the Court of Civil Appeals:

"On November 19, 1920, H. B. Galbraith brought this action against F. Z. Bishop, seeking to recover upon an alleged debt. The cause was returnable to the March, 1921, term of court, and service of citation was had upon Bishop in time to require him to answer at that term, which convened on March 14. On December 17, 1920, Bishop filed his plea of privilege, in due form, to be sued in Bexar county, where he claimed to reside, and on January 7, following filed an answer subject to the plea. No controverting affidavit was ever filed in reply to the plea of privilege, and, without taking any action in the matter, the court adjourned for the term, on April 16, 1921."

The next regular term of the court convened May 30, 1921. The court, in the absence of Bishop, set the case for trial on June 6, 1921. On that day, still in the absence of Bishop, the case was tried. Judgment was rendered against Bishop for approximately the amount sued for. No motion for new trial was filed at that term, nor at the next term, which convened in October, nor was appeal in any way perfected.

We quote the relevant portions of the judgment of the trial court, as follows:

"Be it remembered, that on this the 6th day of June, A. D. 1921, the same being a regular day of the regular May, A. D. 1921, term of the district court of Cameron county, Tex., for the trial of civil causes, came on to be heard in its regular order on the docket of said court the above-entitled and numbered cause, wherein H. B. Galbraith is plaintiff and F. Z. Bishop is defendant; the said 6th day of June, A. D. 1921, having been the day theretofore appointed by said court for the trial of said cause, and it having been placed on the docket of said court for trial on said day, and the plaintiff, being present in person and by counsel, announced ready for trial, and the defendant, F. Z. Bishop, though duly cited and having theretofore answered in said cause by his original answer filed the 7th day of January, A. D. 1921, came not. Whereupon the court, having heard the evidence and the pleadings and the argument of counsel, is of the opinion that both the law and the facts are with the plaintiff, and that defendant was and is justly indebted in the sum of $1,800.08 to the plaintiff, H. B. Galbraith."

It will be observed that this judgment, on its face, was entirely valid, the court having jurisdiction of the parties and the subject-matter. No mention was made by the court of the plea of privilege. On the contrary, it was recited in the judgment that an answer had been filed by the defendant.

At the January, 1922, term of the court, Bishop filed a motion to vacate and set aside the judgment rendered in June, 1921. Copy of that motion was duly served upon Galbraith. He answered by a general demurrer and general denial. Along with that answer, Galbraith filed the following motion:

"Comes now H. B. Galbraith, plaintiff in above entitled and numbered cause, and files this, his motion to strike and not consider and hold for naught defendant's motion to set aside and vacate plaintiff's judgment of June 6, 1921, because said motion of defendant is, in fact, a motion for a new trial and is filed and presented after the termination of the term of which said judgment was rendered, and this court is, therefore, without authority to consider same.

"Wherefore, plaintiff prays said motion of defendant be stricken," etc.

On the same day the court made the following order:

"Be it remembered, that on this the 10th day of February, A. D. 1922, the same being a regular day of said court, of said term, for the hearing of motions in civil causes, came on to be heard in its due order the motion of plaintiff, herein filed this date, to strike out and not consider and hold for naught defendant's motion to vacate and set aside the judgment of this court for plaintiff heretofore entered of date June 6, 1921, said motion of defendant having been heretofore filed on the 21st day of January, 1922, and it appearing to the court, after hearing argument of counsel, and considering the motions both of plaintiff and defendant, that plaintiff's motion to strike out and not consider defendant's motion of January 21, 1922, that plaintiff's motion should be in all things granted and allowed.

"Therefore it is considered and so ordered adjudged and decreed that defendant's said motion of January 21st should not be considered, and the same is hereby stricken out and held for naught, to which action of the court defendant then and there excepted, and in open court, by proper entry upon the docket of this court, gave notice of appeal to the Court of Civil Appeals for the Fourth Supreme Judicial district of San Antonio, Tex. Defendant is hereby granted 60 days from date hereof to file bills of exception and statement of facts."

From this last order, Bishop appealed to the Court of Civil Appeals at San Antonio. The final judgment of that court reads as follows:

"The motion for rehearing will be granted, the judgment of the court dismissing the motion to set aside judgment will be reversed, and the cause remanded, with instructions to the court below to proceed to transfer the cause to the district court of Bexar county, unless the plaintiff shall, in the meantime, file a proper affidavit controverting the plea of privilege filed by defendant, in which event the court shall proceed to hear and determine the plea on its merits.

"Motion granted, judgment reversed, and cause remanded, with instructions."

The opinion of the Court of Civil Appeals is reported in 246 S. W. 416.

This case involves two controlling questions. The first is a proper construction of article 1903, Vernon's Sayles' Annotated Civil Statutes of Texas, Supp. of 1918. That article reads as follows:

"A plea of privilege to be sued in the county of one's residence shall be sufficient, if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of such process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted, and shall state the county of his residence at the time of such plea, and that none of the exceptions to the exclusive venue in the county of one's residence, mentioned in article 1830 or article 2308 of the Revised Statutes, exist in said cause; 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 10 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. Either party may appeal from the judgment sustaining or overruling the plea of privilege, and, if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal."

In its opinion, on rehearing, in the case at bar, the Court of Civil Appeals followed the great weight of authority among the Courts of Civil Appeals in this state, in...