H. H. Watson Co. v. Cobb Grain Co.

• Decision Date: 09 March 1927
• Docket Number: (No. 768-4738.)
• Citation: 292 S.W. 174
• Parties: H. H. WATSON CO. v. COBB GRAIN CO. et al.
• Court: Texas Supreme Court

292 S.W. 174

H. H. WATSON CO. v. COBB GRAIN CO. et al.

(No. 768-4738.)

Commission of Appeals of Texas, Section B.

March 9, 1927.

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

Action by the H. H. Watson Company against the Cobb Grain Company and others, who filed a plea of privilege. A judgment dismissing the suit on plaintiff's motion was reversed by the Court of Civil Appeals (290 S. W. 842), and plaintiff brings error. Reversed, and judgment of the district court affirmed.

George Sergeant, of Dallas, for plaintiff in error.

Clark & Clark, of Dallas, for defendants in error.

SHORT, J.

The original suit was instituted in the county court of Dallas county by the plaintiff in error corporation against the defendants in error on the 5th day of June, 1924, to recover damages because of the alleged shortage and inferior quality of certain maize heads purchased by the plaintiff in error upon a contract from the defendant in error Cobb Grain Company, a partnership, the performance of which contract was alleged to have been assumed by the other defendant in error, Farmers' Elevator Company.

On July 7, 1924, the defendants in error filed pleas of privilege to be sued in Hale county, Tex., and on such date called the court's attention to the pleas, when a notation was made thereof by the court on its docket. No controverting affidavit was ever filed, and on November 10, 1924, the defendants in error orally moved the court to sustain the pleas and transfer the case to Hale county. Before the court could act on such oral motion, the plaintiff in error orally presented a motion to dismiss the suit and allow it to take a nonsuit. This motion was granted and a nonsuit was taken. The defendants in error prosecuted an appeal to the Court of Civil Appeals at Dallas from the judgment dismissing the suit. This judgment is as follows:

"On this the 10th day of November, A. D. 1924, came regularly on to be heard the plea of privilege of the defendants, Cobb Grain Company and Farmers' Elevator Company, and thereupon came all parties in open court and announced ready for trial; and it appearing that a plea of privilege had been filed on July 7, 1924, in this cause and had never been controverted; and the court, having heard and considered the evidence and law and the argument of counsel, but before he announced his decision or intimated what his ruling would be plaintiff requested permission to take a nonsuit; and the court being of the opinion that plaintiff was entitled to take nonsuit:

"It is therefore ordered, adjudged, and decreed by the court that plaintiff's request for nonsuit be and it is here sustained, and this cause is here dismissed at the cost of plaintiff, for which execution may issue."

In addition to this judgment, there is a bill of exceptions evidencing the fact that the plaintiff in error moved the court to allow it to take a nonsuit in the cause before the court had announced its decision upon the presentation and hearing of the pleas of privilege, from which it will be seen that while the question presented involves the construction of three statutes which will be noted hereafter, there is really but one question involved in the application for the writ of error, and that question is whether the trial court lost jurisdiction of the case after the pleas of privilege had been filed and after the plaintiff in error had failed to file a controverting affidavit. It will be noted that the plaintiff in error did not offer to file this affidavit at any time, even though it might have done so after the time allowed by law had good cause been shown for its failure to file the affidavit within the time allowed. The Court of Civil Appeals reversed the judgment of the trial court, having held that jurisdiction was lost under the circumstances above detailed of the case by the trial court at the time the judgment was rendered. The plaintiff in error presents this proposition:

"Where defendant files a plea of privilege to the jurisdiction of the court, and plaintiff files no controverting plea and defendant moves the court to transfer the case for such reason, plaintiff may take a nonsuit at any time before the court announces its decision on the motion."

The defendants in error contend that the following counter proposition is the law of the case:

"Where defendant has filed a plea to be sued in the county of his residence in due form and regular order, and plaintiff has had a reasonable time to controvert the same as provided by law, and said motion having been set down for a hearing by the court, it is the duty of the court to transfer the cause to the county of defendant's residence, and it is fundamental error for the court to allow the plaintiff to take a nonsuit and dismiss the cause at plaintiff's cost."

The decision of the question presented by these two propositions depends upon the proper construction of article 1903 of the Revised Statutes of 1911, being article 2008 of the Revised Statutes of 1925, and of article 1832 of the Revised Statutes of 1911, being article 2019 of the Revised Statutes of 1925, and of article 1955 of the Revised Statutes of 1911, being article 2182 of the Revised Statutes of 1925; but as this case arose before the adoption of the Revised Statutes of 1925, we will refer to the article under the number of the previous statutes. Article 1830 of the Revised Statutes of 1911 provides that no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile except in certain specified cases, the exceptions to which are not necessary to mention. Article 1903 provides for the preparation and presentation by a defendant of a plea of privilege to be sued in the county of one's residence, and also provides how and when a plaintiff who desires to do so may prepare and file a controverting plea under oath, whereupon hearing on the issue thus joined shall be had, and if the plea of privilege is sustained, the cause shall not be dismissed, but transferred to the court having jurisdiction of the subject-matter located in the proper county. Article 1955 reads as follows:

"At any time before the jury have retired, the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief; when the case is tried by the judge such nonsuit may be taken at any time before the decision is announced."

A general rule of construction is that —

"Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and, consequently, no room is left for construction." Cooley on Constitutional Limitations (4th Ed.) 68.

Chief Justice Marshall of the Supreme Court of the United States, in Weston v. City Council of Charleston, 2 Pet. 449, 7 L. Ed. 481, defines the word "suit" to be a comprehensive term and to apply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him, saying: "The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit." Further saying that the word "suit" is more general in its comprehension than the word "action." Evidently this meaning of the word "suit' is adopted in our Constitution (article 5, § 8) where the original jurisdiction of our district courts is defined. The plea of privilege is in the nature of a motion to change the venue of a suit. R. S. 1911, arts. 1911-1916, 2312-2318. It is apparently conceded by all parties that the county court at law of Dallas county, where this suit was brought, had jurisdiction of the subject-matter thereof; the only contention of the defendants in error being that the personal privilege belonged to them of having the case tried and the merits of the controversy determined in another county, and that having shown without controversy that they were entitled to this privilege, the court where the suit was brought was not only without jurisdiction to try and determine the cause, but also was without jurisdiction to enter an order dismissing it upon the motion of the plaintiff.

"Jurisdiction" is of two kinds — jurisdiction of the person and jurisdiction of the property or thing in controversy — or, in other words, jurisdiction in personam and jurisdiction in rem. 2 Words and Phrases, Second Series, pp. 1280, 1281. The question of where a suit should be brought is not one of "jurisdiction" of the property or thing in controversy. If a court has no jurisdiction of the thing in controversy, although it may have jurisdiction of the parties, any judgment rendered affecting the thing or the property involved is of no avail, since the parties cannot give jurisdiction to the court where the law has denied it. The rule is different where the court has jurisdiction of the subject-matter of the suit, but its right to try and determine the cause is made manifest by the due presentation by the defendants of a plea of privilege. The...