Girvin v. Gulf Refining Co.

• Decision Date: 29 March 1919
• Docket Number: (No. 8146.)
• Citation: 211 S.W. 330
• Parties: GIRVIN v. GULF REFINING CO.
• Court: Texas Court of Appeals

211 S.W. 330

GIRVIN v. GULF REFINING CO.

(No. 8146.)

Court of Civil Appeals of Texas. Dallas.

March 29, 1919.

Rehearing Denied May 3, 1919.

Appeal from Dallas County Court; W. L. Thornton, Judge.

Suit by the Gulf Refining Company against J. H. Girvin, begun in the justice court. Defendant's plea of privilege to be sued in his own county and precinct was denied as having been waived, and was again denied upon appeal to the county court, and defendant appeals. Reversed and remanded, with instructions.

L. L. Montgomery, of Dallas, and Anderson & Upton, of San Angelo, for appellant.

Seay & Seay, of Dallas, for appellee.

TALBOT, J.

We take from appellant's brief, which is admitted by appellee to be correct, the following statement of the nature and result of the suit:

"The Gulf Refining Company instituted this suit in the justice court, precinct No. 1, Dallas county, Tex., on the 15th day of September, 1917, on an open account. And at the time of the institution of the suit the defendant J. H. Girvin resided in Tom Green county, Tex. The citation issued out of justice court commanded the defendant to appear at the next regular term of court, which was on the 8th day of October. The justice court was in session at the time this suit was instituted, having convened on September 10th, and not having disposed of the business until October 6th. And in the meantime, to wit, on the 22d day of September, the defendant, J. H. Girvin, filed his plea of privilege to be sued in the precinct of his residence in Tom Green county, Tex., which was in due form as required by law, and the same remained on file, without any action being taken until October 9th, at which time the plaintiff attempted to file a controverting affidavit, which was set down for hearing on November 2d, and on said hearing the defendant's plea of privilege was overruled for the reason that defendant had not presented same prior to October 8th. The cause was appealed to the county court of Dallas county at law, No. 2. The county court convened on the 14th day of January, 1918, and adjourned on the 9th day of March, 1918. The transcript from the justice court was filed in the county court on the 17th day of January, and no pleadings by either party were filed in the county court, and no action was taken until the 12th day of March, when the defendant's plea of privilege was again overruled, for the reason that he had waived same in the justice court by not presenting same prior to the 8th day of October, and for the further reason that he had waived same by not presenting it in the county court during the term at which the transcript was filed in the county court, the transcript having been filed on the seventeenth day of the January term of said court. After said plea of privilege had been acted upon and overruled, both parties announced ready for trial, and judgment was then and there rendered for the plaintiff for $184.65."

From said judgment and said order overruling defendant's plea of privilege, the defendant has appealed to this court.

The first contention of appellant is that —

"The court erred in overruling defendant's plea of privilege to be sued in Tom Green county, the defendant having been cited to appear at the October term of justice court, precinct No. 1, Dallas county, Tex., and having his plea of privilege on file with the justice of peace when court convened."

This contention should be sustained. The appellant's plea of privilege to be sued in Tom Green county, the alleged county of his residence, is in due form and properly verified. This plea, under the Acts of the Thirty-Fifth Legislature, chapter 176 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), constituted prima facie proof of the appellant's right to change of venue, and the facts therein alleged, in the absence of a controverting plea on the part of appellee, as provided for in said act, setting out specifically the fact or facts relied upon to confer venue of the cause on the court in Dallas county, must be taken as true. Appellee filed no such controverting plea in the case. He did, however, file under oath in the justice court on the 9th day of October, 1917, during the October term of said court, and the term at which appellant was commanded by the citation served upon him to appear, the following instrument:

"Now comes the plaintiff by its attorney, Hal Craddock, in the above and numbered cause and files this its controverting affidavit to the defendant's plea of privilege heretofore filed and says:

"That the defendant has waived his privilege to be sued in the precinct of his residence for the reason that he filed his plea of privilege at a preceding term of this court.

"Wherefore the plaintiff prays that a time for a hearing on this plea of privilege be set, and that same be noted on this affidavit and a copy of this affidavit, including your honor's notation, thereon be served on the defendant or his attorney."

This was not a "controverting plea," within the meaning of the statute to which we have referred. It can be treated as no more than written request to overrule or strike out appellant's plea of privilege to be sued in the county of his residence on the ground that said plea had been waived, and the record discloses that it was so treated by the county court. Upon the filing of this instrument by the appellee, the justice court set down for hearing on November 2, 1917, appellant's said plea of privilege, and on said date overruled the same, presumably on the ground that it had been waived.

The question then is: Was this action of the justice court correct? Our conclusion is that it was not. The cases of Harris Millinery Co. v. Melcher, 142 S. W. 100, and Smith v. First Nat. Bank of Waco, 187 S. W. 233, were decided before the passage of the act of the Thirty-Fifth Legislature above referred to and do not control a decision of the question. Those cases were correctly decided under their respective facts and the law as it then existed. In the present case the appellee, notwithstanding the appellant, by the filing of his plea of...