Henry v. Henry

• Decision Date: 06 June 1923
• Docket Number: (No. 440-3822.)
• Citation: 251 S.W. 1038
• Parties: HENRY v. HENRY.
• Court: Texas Supreme Court

251 S.W. 1038

HENRY v. HENRY.

(No. 440-3822.)

Commission of Appeals of Texas. Section A.

June 6, 1923.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by J. S. Henry against Ruby Henry. Judgment for plaintiff, and defendant appeals. Question certified to Supreme Court. Question answered and ordered certified to Court of Appeals.

Wynne & Wynne, of Wills Point, for appellant.

R. H. Smith, of Fort Worth, for appellee.

RANDOLPH, J.

The following certified question has been submitted to this section of the Commission for consideration, viz.:

"The defendant in error, J. S. Henry, instituted this suit in the Seventeenth district court of Tarrant county on the 21st day of June, 1920, against Mrs. Ruby Henry, plaintiff in error, to recover a tract of land situated in Van Zandt county, Tex. The defendant, plaintiff in error here, was duly cited, and on the 1st day of October, 1920, filed with the clerk of said court her plea of privilege to be sued in Van Zandt county, alleged to be the county of her residence. The plea was duly verified and in all respects sufficient under the amendment of 1917 relating to that subject. See article 1903, V. S. Tex. Civ. Stats. 1918 Supp. The record discloses no further action until February 12, 1921, when the defendant not having answered, judgment was rendered in favor of the plaintiff, J. S. Henry, for the title and possession of the lands as prayed for.

"Several terms of court intervened between the filing of the plea of privilege and the judgment, and the record fails to disclose that the plea was called to the court's attention, or that any request was made by the defendant for a disposition of the same, nor does the judgment in any way refer to or dispose of the plea of privilege, and plaintiff in error has prosecuted the writ herein and assigns error to the action of the court in failing to dispose of her plea, insisting that the plea should have been granted and the venue of the suit transferred to the district court of the county of her residence.

"This court held, upon the authority of Brooks v. Wichita Mill & Elevator Co. (Tex. Civ. App.) 211 S. W. 288; Bennett v. Rose Mfg. Co. (Tex. Civ. App.) 226 S. W. 143; and Murphy v. Dabney (Tex. Civ. App.) 208 S. W. 981, that the trial court erred and that the judgment should be reversed for the reasons set forth in our original opinion, which will be transmitted herewith, and accordingly reversed the judgment below and ordered the case transferred to Van Zandt county, as prayed for in the plea of privilege.

"The defendant in error has presented a motion for rehearing which is now pending before us, and requests, in the event we are inclined to overrule it, that the question involved be certified to your honors, and inasmuch as our conclusion is perhaps in conflict with the following cases cited in behalf of defendant in error, to wit, Harris Millinery Co. v. Melcher (Tex. Civ. App.) 142 S. W. 100; Beall v. Moore (Tex. Civ. App.) 210 S. W. 622; Lyons Bros. Co. v....