Grogan-Cochran Lumber Co. v. McWhorter
Decision Date | 16 March 1928 |
Docket Number | (No. 1668.) |
Citation | 4 S.W.2d 995 |
Parties | GROGAN-COCHRAN LUMBER CO. v. McWHORTER. |
Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
Action by T. A. McWhorter against the Grogan-Cochran Lumber Company. From a judgment overruling defendant's plea of privilege, defendant appeals. Reversed and remanded, with instructions.
Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.
A. D. Dyess, of Houston, for appellee.
Appellee in this case thus pleaded his cause of action: He alleged that in the year 1919 he sold to Fred Neidigk "all the pine mill timber now standing and growing" upon certain land owned by him in Montgomery county, Tex., pleading the conditions of the deed, which, in hæc verba, was made a part of his petition; that Neidigk assigned his interest in this deed to appellant; that he and appellant entered into an extension agreement extending the time in which the timber was to be removed upon the conditions of the original deed and upon a new consideration; that appellant entered upon the land under the contract, and not only cut and removed all timber conveyed by its terms, but cut and removed timber from the land not covered by its terms, expressly pleading that such timber was not within the contract, describing fully the timber so cut, and dividing it into three classes of value of $2,500, $245.90, and $6,250, respectively, and prayed judgment for these sums with a special prayer:
"That upon a hearing thereof of said contracts and the rights of parties hereto growing out of said contracts and agreement be construed and determined by this court and such other and further relief, general and special, to which this plaintiff may show himself entitled and as in duty bound and ever pray."
Appellant answered in due order of pleading by the statutory plea of privilege, as follows:
This plea was answered by the following controverting affidavit:
Appellee testified in his own behalf that he sold the timber on his land to Fred Neidigk under the deed pleaded; that Neidigk sold to appellant, and that appellee and appellant entered into the extension agreement as pleaded; that appellant entered upon the land and cut and removed the timber for which appellee was suing. He testified further that it was his contention that the timber for which he was suing was not conveyed by the terms of the deed. He testified:
Appellant's attorney testified that the construction of the contract was the only point in issue in the case. On the record as thus made appellant's plea of privilege was overruled, and the case is before us on appeal from that judgment.
Appellant insists that the controverting affidavit was insufficient, in that it did not affirmatively allege facts conferring venue on the trial court, the point being that the affidavit does not set out the facts of appellant's cause of action. The law seems to be that the controverting affidavit is itself a plea and must contain allegations of fact relied upon to sustain the venue in the trial court, and if not affirmatively alleged, the affidavit must adopt the terms of the petition, either by reference or as an exhibit. Clearly, in this respect the affidavit was insufficient. There was nothing alleged to show the nature of the cause of action nor that would bring the case within article 1995, § 23. On authority of Jacobson v. Berwick (Tex. Civ. App.) 289 S. W. 1037 the controverting affidavit was insufficient.
But pretermitting that point, the court erred in overruling the plea of privilege. It clearly appears, both from appellee's petition and his evidence, that this was a suit to recover damages for cutting and removing growing pine timber on land located in Montgomery county, where appellant had its principal office and its place of business, and that appellant had no office or agent in Harris county. It was, therefore, a suit to recover damages to land, within exception 14 of article 1995, providing that:
"Suits for the recovery of lands or damages thereto, * * * must be brought in the county in which the land, or a part thereof, may lie." Railway Co. v. Foster (Tex. Civ. App.) 44 S. W. 198.
While this is not a jurisdictional statute (Houston Oil Co. v. Bayne [Tex Civ. App.] 141 S. W. 544), it is of such a mandatory nature as to control when in conflict with other sections providing simply that suit "may be brought," as does section 23, specially pleaded by appellee. In Mitchell v. Hancock (Tex. Civ. App.) 196 S. W. 694, it was said that the difference in wording in the various exceptions to the general rule indicates that the Legislature had in mind the different significations of the terms "may," "must," and "shall," and presumably used those terms in relation to the subject of venue advisedly. So, though appellee be right (a point we do not decide) in his contention that this is a suit to construe a timber deed which he made to Neidigk and the extension thereof to appellant, and therefore within the provisions of section 23, article 1995, his ground of venue must, because of the mandatory language of section 14, yield to the provisions of that section conferring venue upon Montgomery county. Cogdell v. Ross (Tex. Civ. App.) 243 S. W. 561, and authorities therein cited; Reeder & Lynch v. E. B. Hayes Mach. Co. (Tex. Civ. App.) 257 S. W. 947; Mitchell v. Porter (Tex. Civ. App.) 194 S. W. 981; Burkitt v. Wynne (Tex. Civ. App.) 132 S. W. 816; Dickson v. Scharff (Tex. Civ. App.) 142 S. W. 981.
After appellant's plea of privilege had been overruled, the case was called for trial on its merits, and it was forced to proceed with its defense, and in doing so answered to the merits, and impleaded its warrantor, without saving by a special plea its rights under its plea of privilege, and without making such answer subject to its plea of privilege. On this ground appellee asserts that the plea of privilege has been waived. This is not a sound proposition. Having duly prosecuted its plea of privilege to judgment, and having reserved proper exception to that judgment, and taken the necessary steps to perfect its appeal, the filing of an answer and impleading its warrantor did not waive the plea of privilege.
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...the same effect see Babno v. Compton, Tex.Civ.App., 230 S.W. 240; Miller v. Hoppe, Tex.Civ.App., 238 S.W. 729; Grogan-Cochran Lumber Co. v. McWhorter, Tex.Civ.App., 4 S.W.2d 995; Id., Tex.Civ.App., 15 S.W.2d 126, and Liles v. McDonald, Tex.Civ.App., 63 S.W.2d That the relief sought by plain......
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