Gulf Refining Co. v. Needham
| Decision Date | 22 September 1950 |
| Docket Number | No. 2813,2813 |
| Parties | GULF REFINING CO. v. NEEDHAM et al. |
| Court | Texas Court of Appeals |
Wagstaff, Harwell, Wagstaff & Alvis, Abilene, for appellant.
Frank Sparks, Eastland, J. M. Nuessle, Ranger, for appellees.
This is an appeal from an order sustaining a motion to strike and dismiss a plea of privilege. Appellees, Clara Wells Needham, a widow, individually and as guardian for her minor children, Linda Lou Needham, Weldon Needham and Jimmy Needham, and the Pacific Employers Insurance Company, a corporation, were plaintiffs in the original petition filed against appellant, Gulf Refining Company, a corporation, and were joined by appellees, Hugh S. Needham and wife, Julia Needham, as parties plaintiff in plaintiffs' first amended petition.
The case is before this court on an agreed statement of facts which is, in substance, as follows:
'The plaintiffs, with the exception of Hugh S. Needham and wife, Julia Needham, filed their original petition on April 1, 1949.
'Citation was issued on April 2, 1949 and was served on the defendant April 4, 1949 by serving R. G. Barry as agent.
'The defendant filed its motion to quash the purported citation and service of process on April 23, 1949 and on the same date, and subject to its motion to quash the citation, filed its plea of privilege.
'The above named plaintiffs filed an answer to defendant's motion to quash the citation on May 2, 1949 and on the same date, filed plaintiffs' controverting plea to defendant's plea of privilege. All of the above named plaintiffs joined in the controverting plea except Pacific Employers Insurance Company.
'The defendant's motion to quash the citation and service of process was sustained by the Court by order entered May 13, 1949.
'All of the plaintiffs, including Hugh S. Needham and wife, Julia Needham, filed their amended petition on May 21, 1949.
'Citation was issued on the amended petition on May 24, 1949 and the same was served on that date.
'The defendant in order to reach the new plaintiffs, filed a second plea of privilege on June 20, 1949.
'All of the plaintiffs filed a controverting plea on June 29, 1949.
'The pleas of privilege were by agreement of the parties set for hearing on January 6, 1950.
'On January 6, 1950, the plaintiffs filed a motion to strike and dismiss the defendant's pleas of privilege on the ground that the defendant had, prior to the hearing on the pleas of privilege, filed, urged and had the Court to pass upon the defendant's motion to quash the citation and service of process.
'The Court took plaintiffs' motion to strike and dismiss the defendant's pleas of privilege under consideration and at the same time, heard the evidence on the defendant's pleas of privilege and the plaintiffs' controverting pleas thereto. At the conclusion of the evidence, the Court took all of the matters under consideration and on the 23rd day of February, 1950, entered an order sustaining the plaintiffs' motion to strike and dismiss the defendant's pleas of privilege and entered an order dismissing same.
'Todd Needham, his wife and children, and the parents of Todd Needham, were all residents of Eastland County, Texas at the time of the death of the said Todd Needham.
'Gulf Refining Company is a corporation incorporated under and by virtue of the laws of the State of Delaware, with a permit to do business in the State of Texas, and with its general office and place of business in the State of Texas, situated in Harris County, Texas.
'One of the plaintiffs, namely, Pacific Employers Insurance Company, is a corporation, duly incorporated, under and by virtue of the laws of the State of _____ with a permit to do business in the State of Texas, and with its principal office and place of business situated in Harris County, Texas.
'The evidence introduced was insufficient to sustain plaintiffs' controverting pleas to the defendant's pleas of privilege to the effect that the defendant, Gulf Refining Company, had an agent and representative in Eastland County, Texas, upon the several dates alleged by the plaintiffs and such evidence failed to show that the defendant, Gulf Refining Company, had such an agent and representative in Eastland County, Texas, at the times of the dates in question as contemplated by law.
'This agreement shall constitute the original statement of facts herein.
'Witness our hands this 23rd day of February, 1950.
'J. M. Muessle
'Frank Sparks
'Attorneys for Plaintiffs
'Wagstaff, Harwell, Wagstaff & Alvis
'By: John H. Alvis
'Attorneys for Defendant.'
'The above and foregoing, having been agreed to by the parties to the above entitled and numbered cause as the original statement of facts therein and having been examined by me and found to be correct, is, by me, approved and signed as the original statement of facts therein.
'In connection with the above, I wish to state that, after hearing the testimony adduced and after a careful study of the pleadings of the parties, including pleas of privilege filed by the defendant, plaintiffs' controverting answers to such pleas, the motion filed by the defendant to quash citation and service upon the defendant, the Court's order on said application, sustaining the same and quashing the service on the defendant, and plaintiffs' motion to strike the defendant's pleas of privilege, and after giving consideration to the oral argument of counsel and the written briefs submitted, I am of the opinion and find:
'(1) That the defendant, by filing its motion to quash citation and service of process in this cause, on April 23, 1949, and thereafter by presenting and urging the same before the Court before first presenting and urging its pleas of privilege in said cause, has waived its pleas of privilege under Supreme Court Rule 85, which became effective September 1, 1941 and that, therefore, the motion filed by the plaintiffs on the 6th day of January, 1950, to strike defendant's pleas of privilege should be sustained.
'(2) I find that the evidence is insufficient to sustain the plaintiffs' controverting pleas to the defendant's pleas of privilege on the theory that the defendant, Gulf Refining Company, had an agent in Eastland County upon the several dates alleged by the plaintiffs, and, but for the fact that I have found in Paragraph 1, hereof, that the defendant had waived its pleas of privilege, it would be my duty to sustain the pleas of privilege filed and urged by the defendant.
'Signed this 23rd day of February, 1950.
'George L. Davenport
'Judge of the 91st District Court of Eastland County, Texas.'
The order of the court dismissing appellant's plea of privilege recited:
'* * * that the defendant, by filing its motion to quash citation and service of process in this cause served upon it, and thereafter by presenting and urging such motion, and causing an order to be made and entered by this Court quashing such citation and service, before first presenting and urging its pleas of privilege filed herein, waived its said pleas of privilege now before the Court and the motion filed by the plaintiffs on the 6th day of January, 1950, to strike and dismiss the defendants' pleas of privilege should be sustained.
'The Court further finds that the evidence introduced was and is insufficient to sustain plaintiffs' controverting plea to the defendant's pleas of privilege to the effect that the defendant, Gulf Refining Company, had an agent and representative in Eastland County, Texas upon the several dates alleged by the plaintiffs, and that such evidence failed to show that the defendant, Gulf Oil Company, has such an agent and representative in Eastland County at the times of the dates in question as contemplated by law.'
Defendant, Gulf Refining Company, a corporation, brings this appeal from the order of the court sustaining such motion to dismiss.
The question of this court's jurisdiction of the appeal has been raised. It is urged by appellees that the appeal is not from a 'judgment sustaining or overruling' a plea of privilege permitted by Art. 2008, Vernon's Ann.Tex.Civ.Stat., but is an attempt to appeal from an interlocutory order. Appellees contend that such order sustaining their motion to strike and dismiss the plea of privilege because it had been waived is interlocutory and is not an order overruling the plea of privilege as required by the statute and that no appeal lies therefrom. We cannot agree with this contention. Although the order appealed from does not use the word 'overruled' it effectually and finally disposed of the plea of privilege and in our opinion, had the effect of overruling such plea. The defendant's only remedy was to appeal. Leyendecker v. Harlow, Tex.Civ.App., 189 S.W.2d 706 (RWM); Pass v. Ray, Tex.Civ.App., 44 S.W.2d 470; Southport Petroleum Co. v. Carter, 139 Tex. 661, 165 S.W.2d 85.
Appellant, Gulf Refining Company, complains in its first point of the trial court's action in holding that the filing of its motion to quash citation and procuring the action of the court thereon had the effect of waiving its plea of privilege filed at the same time as and subject to the motion to quash, and contends that the court erred in dismissing the plea of privilege.
A determination of the question presented hinges upon the correctness of appellees' contention that Rule 85, Vernon's Tex. Rules of Civil Procedure is controlling and that such rule changed the order of pleading as previously provided in Rule 7 of the old Texas Rules of Procedure in such manner as to require a plea of privilege to be filed and heard prior to the filing and hearing of a motion to...
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