Griffin v. Linn

• Decision Date: 18 January 1928
• Docket Number: (No. 2946.)
• Citation: 3 S.W.2d 148
• Parties: GRIFFIN v. LINN.
• Court: Texas Court of Appeals

3 S.W.2d 148

GRIFFIN v. LINN.

(No. 2946.)

Court of Civil Appeals of Texas. Amarillo.

January 18, 1928.

Rehearing Denied March 7, 1928.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Action by Robert Linn against John R. Griffin. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

Jas. A. Stephens, of Benjamin, and W. F. Kelly and J. Rob Griffin, both of Fort Worth, for appellant.

Bean & Klett, of Lubbock, for appellee.

RANDOLPH, J.

This suit was instituted in the district court of Lubbock county by Linn, as plaintiff, against Griffin, as defendant, to recover damages for false representations alleged to have been made by Griffin to the plaintiff in the sale of stock in a land corporation operating in the Republic of Mexico. On trial before a jury, and on the verdict of the jury, the trial court rendered judgment for the plaintiff, and the defendant has appealed from such judgment. The parties will hereinafter be referred to as in the trial court, and such statements of the facts in the case will later be made as may be necessary to explain the questions being considered by us.

The defendant filed his plea of privilege to be sued in Tarrant county, the county of his residence. This plea was filed on appearance day of the term of court to which the suit was returnable. The plaintiff filed a motion in which he recited the inaccessibility of the plaintiff, the impossibility of the preparation and filing of a controverting affidavit within the five days allowed by the statute, and praying for an extension of time in which he might file said affidavit. In response to this motion, the trial court granted an extension of twenty days in which said affidavit might be filed. Thereafter, within the time so extended and at the same term of court, the controverting affidavit was filed. The hearing on the plea and affidavit was set down for hearing at the same term of court, but on request of the plaintiff it was passed to be heard with the trial of the case on its merits.

The defendant properly excepted to the court's granting the extension of time which was granted to plaintiff to file said controverting affidavit on the grounds (1) that the affidavit was not filed within the time fixed by the statute; and (2) the trial court erred in setting the hearing and in hearing the motion and affidavit with the trial of the case on its merits. The decision of the defendant's first contention involves a construction of the language of the provision for controverting affidavits in article 2007, Revised Statutes, which is as follows:

"If the plaintiff desires to controvert the plea of privilege, he shall, within five days after appearance day, 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 such cause is pending."

We will not discuss the question of the power of the trial court to extend the time and permit the filing of the affidavit, for the reason, as we view it, the affidavit was filed in time. By the first clause of the article above referred to, relating to the filing of the plea of privilege, no time is named for the filing of same in the cause, and it has been held that, where the defendant is in default, but no judgment was taken by the plaintiff, a plea of privilege filed during the term was in time. Landa v. Moody (Tex. Civ. App.) 57 S. W. 51. See, also, Smith v. Citizens' National Bank (Tex. Civ. App.) 246 S. W. 407. This being correct, and the plaintiff not having taken judgment by default in that case, it would have been impossible for the controverting affidavit to have been filed within the five days after appearance day of that term of court; hence the Legislature cannot have intended to refer to the appearance day of the term of court at which the case was returnable. The filing within five days after appearance day of the succeeding term, no default judgment having been taken, would have constituted a filing within the meaning of such article. Sibley v. Continental Supply Co. (Tex. Civ. App.) 290 S. W. 769, 770; Girvin v. Gulf Refining Co. (Tex. Civ. App.) 211 S. W. 330.

This court has held that, there being nothing in the law which expressly requires the court to determine the plea of privilege in advance of a trial on the merits, the matter of the time and manner of hearing and determining the plea of privilege is largely within the discretion of the trial judge, and if, in his opinion, it should appear more convenient to hear such plea in connection with the trial of the case on its merits, such action would not, in all cases, be error. Wichita Mill & Elevator Co. v. Simpson (Tex. Civ. App.) 227 S. W. 352-354. It occurs to us that under the above decision it would devolve upon the defendant to show some injury, some reason why the court should not have heard the plea with the trial of the case on its merits, and that he was thereby deprived of some substantial right, impairing his ability to make a proper showing. Smith v. Citizens' National Bank, supra.

As stated above, this case was returnable to the August term of court, and the controverting affidavit was filed at that time; hence it should have been disposed of at the succeeding term, either on a separate hearing or in connection with the trial on the merits, unless the business of the court prevented its consideration or the hearing at such time was waived. Austin Bridge Co. v. Wren (Tex. Civ. App.) 297 S. W. 654. This last case impliedly limits the expression "the time" of the hearing, as used by this court in the Simpson Case, supra, to some time during the next term of the trial court.

If the plea of privilege and controverting affidavit must be disposed of at the next succeeding term of court, the burden is placed, by force of the article, upon the plaintiff to show that the requirements that the business of the court prevented its consideration at that term of the court, or that a hearing at that term of court was waived. Austin Bridge Co. v. Wren, supra; Littlefield State Bank v. Moore (Tex. Civ. App.) 257 S. W. 1007.

Article 2008 provides that, upon the filing of such controverting plea, the court shall note on same a time for hearing of such plea. Such hearing, unless the parties agree upon the date, shall not be had until a copy of the controverting plea, including a copy of such notation, shall have been served on the defendant for at least ten days, after which the court shall promptly hear same and enter judgment thereon. There is no question before us as to the matter of service of notice of a setting of such hearing. It appears from the record that the plea of privilege was filed in the trial court on the 14th of August, 1926; that on the 20th of August, 1926, the plaintiff filed his motion for an extension of time in which to file his controverting affidavit, and the order of the court granting same was entered on the minutes of the court on the same day. On August 28, 1926, the plaintiff filed his controverting affidavit, and the court thereupon set the hearing of same for 9 o'clock a. m. on the 10th day of September, 1926, which was a day of the August term, 1926. Nothing further is shown to have been done in the matter of the plea of privilege and controverting affidavit until April 23, 1927, when the defendant filed certain exceptions to the plaintiff's controverting affidavit. On April 25, 1927, the trial court entered its order, overruling the defendant's exceptions to said affidavit, and on the 25th of April, 1927, entered its judgment, granting plaintiff the relief prayed for by him, in which judgment the following is recited:

"Be it remembered that on the 25th day of April, 1927, came on to be considered the above styled and numbered cause, and came the plaintiff, Robert Linn, in person and by attorneys, and announced ready for trial, and came also the defendant, John R. Griffin, in person and by attorneys, and presented his plea of privilege to have the cause transferred to the district court of Tarrant county, Texas, and the plaintiff presented his controverting affidavit, claiming the right to maintain the venue of said cause in the district court of Lubbock county, Texas, and plaintiff requested the court to try the plea of privilege with the main case when tried on its merits, which request was granted. Whereupon the defendant, without waiving his plea of privilege, filed his answer. * * *"

While the burden was on the plaintiff to account for the delay in the matter of the trial court's action on the plea of privilege and the controverting affidavit, the failure on his part to do so could have been waived by the defendant. Not only was there no objection made to the court's consideration of the matter of the plea of privilege and controverting affidavit at a term subsequent to the term upon which it should have been presented, but the above judgment recital shows that the defendant was there presenting his plea for the court's consideration.

The defendant here insists that, while he only objected to the trial of the plea of privilege with the case on its merits, it was fundamental error on the part of the trial court to hear and determine the plea and controverting affidavit at a term that was several terms later than the term at which it should have been disposed of, and therefore he asks that the judgment herein rendered be reversed and the case ordered transferred to the district court of Tarrant county. We are compelled to deny this request for two reasons: (1) The hearing upon the plea of privilege and affidavit, at a term subsequent to the term at which they should have been disposed of, is a proceeding that could have been waived; and (2) by his request that the trial court hear his plea at the time he did hear it the defendant waived such error, if any.

The defendant's exception that the controverting affidavit was not in due form of law,...