Harris Millinery Co. v. Melcher

• Decision Date: 16 December 1911
• Citation: 142 S.W. 100
• Parties: HARRIS MILLINERY CO. v. MELCHER et al.
• Court: Texas Court of Appeals

142 S.W. 100

HARRIS MILLINERY CO. v. MELCHER et al.

Court of Civil Appeals of Texas. Dallas.

December 16, 1911.

Rehearing Denied January 6, 1912.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by the Harris Millinery Company against Mrs. L. Melcher and others. From a judgment sustaining defendants' plea of privilege to be sued in another county, plaintiff appeals. Reversed and remanded.

W. P. Donalson, for appellant. W. L. Hall and W. H. Flippen, for appellees.

TALBOT, J.

This suit was filed in the district court of Dallas county on October 8, 1910, plaintiff's original petition alleging, in substance, that defendants were due and owing plaintiff $1,955.45 on open account. Citation issued, and was served on defendants October 15, 1910, citing them to appear and answer said petition on the first Monday in December, 1910, being December 5, 1910, and the beginning of the December, 1910, term of the court. On November 26, 1910, and during the September term of said court, defendants severally filed pleas of privilege to be sued in the county of their residence, which was alleged to be Wharton county, Tex. These pleas were permitted to lie on file in said cause during the remainder of said September term of the court without being called to the attention of the court, and without any action or request for action thereon, and without any agreement for a continuance without prejudice, or an order of the court to that effect. During the said December term of the court said pleas were presented, and at the same time plaintiff presented and urged motions to strike out and deny said pleas of privilege. The court took said motions under advisement, and postponed the further hearing of said pleas of privilege and motions until December 23, 1910, at which time plaintiff's two motions were overruled, and the further hearing of said pleas of privilege was again postponed by the court until January 14, 1911, at which time final judgment was rendered by the court, sustaining defendants' pleas of privilege to be sued in Wharton county, and transferring said cause to the district court of that county. To this action of the court the plaintiff excepted and appealed.

Appellant contends, in effect, that inasmuch as the appellees' pleas of privilege were not passed or continued by agreement of the parties with the consent of the court, and were not determined during the term at which they were filed, they were waived, notwithstanding appellees were not required to answer until the December term of the court. In this contention we do concur. The defendant in his answer may plead as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause, provided he shall file them all at the same time and in due order of pleading. Rev. Stats. art. 1262. Consistent with this statute, rule 7, prescribed by the Supreme Court of this state (67 S. W. xx) for the district and county courts, provides that the original answer may consist of pleas to the jurisdiction in abatement of privilege, or any other dilatory pleas, etc., the same being pleaded in due order of pleading. Article 1242 of the Revised Statutes provides: "The filing of an answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation. Article 1269 of said statute provides that "pleas to the jurisdiction, pleas in abatement, and other dilatory pleas and demurrers, not involving the merits of the case, shall be determined during the term at which they are filed, if the business of the court will permit." Rule 24 (67 S. W. xxii), governing the practice in district and county courts, is as follows: "All dilatory pleas and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of parties with the consent of the court; and all such pleas and motions shall be first called and disposed of before the main issue on the merits is tried." The pleas of privilege filed by the defendants at the September term of the court were answers within the contemplation of law and put them in court, at least, for the purposes of a trial of said pleas.

True they were cited to appear at a subsequent term of the court, and they could not have been compelled to answer before the convening of that term, but by the filing of their pleas of privilege to be sued in Wharton county they waived that right, which they could do at their discretion, and entered their appearance at the September term for the purpose of filing, and necessarily for the purpose of trying, said pleas. And, it appearing that the business of the court would have permitted it, they could have demanded that said pleas be disposed of during the September term. The defendants having answered, pleading their privilege to be sued in the county of their residence, the cause would not necessarily have to be continued because not filed before the September term. If not directly in point the case of Lang v. Henke, 22 Tex. Civ. App. 490, 55 S. W. 374, in which a writ of error was denied by our Supreme Court, is analogous in support of this view. That suit was filed on March 27, 1899, while the district court was in session, the term not ending until April 29, 1899. On April 12th the defendants therein answered, and on April 19th the cause was tried. It appeared that the plaintiff in the suit made no motion for a continuance, but that he did object to the case being tried because the suit was not instituted until after the term at which it was called for trial had begun. In commenting upon the contention of the appellant that the district court erred in not continuing the case because not filed before the beginning of the term, Mr. Justice Fly, speaking for the Court of Civil...