Hewitt v. De Leon

• Decision Date: 29 March 1928
• Docket Number: (No. 623.)
• Citation: 5 S.W.2d 236
• Parties: HEWITT v. DE LEON.
• Court: Texas Court of Appeals

5 S.W.2d 236

HEWITT v. DE LEON.

(No. 623.)

Court of Civil Appeals of Texas. Waco.

March 29, 1928.

Rehearing Denied April 19, 1928.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by Miguel De Leon against Tom Hewitt. From judgment overruling plea of privilege, defendant appeals. Affirmed.

See, also, 293 S. W. 301.

Trippet, Richey & Sheehy, of Waco, for appellant.

McNamara, Scott & Jaworski, of Waco, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellee, Miguel De Leon, in the district court of McLennan county, Seventy-Fourth judicial district, on the 6th day of September, 1926, against appellant, Tom Hewitt, for actual and exemplary damages alleged to have been suffered as the proximate result of an assault and battery on his person alleged to have been committed by appellant in McLennan county. Citation thereon returnable to the October term of said court was duly issued and served. Appellant, on October 12, 1926, the appearance day of said term, filed herein his plea of privilege to be sued in Runnels county, where he resided. Appellee on the same day filed an affidavit controverting said plea on the ground that the assault for which damages were claimed by him was committed in McLennan county. No further action appears to have been taken herein until September 1, 1927, at which time appellant filed a reply to said controverting affidavit, in which he alleged, in substance, that his right to have the issues involved herein tried in said Runnels county had theretofore been adjudicated by reason of a certain proceeding in the district court of McLennan county, Tex., Nineteenth judicial district.

The court on October 8, 1927, heard said plea of privilege. The parties at said hearing agreed in open court that appellee had theretofore, on the 26th day of February, 1926, filed a suit against appellant in the district court of McLennan county, Nineteenth judicial district; that the cause of action therein asserted was the identical cause of action asserted in this suit; that appellant on April 6, 1926, the appearance day of the term of court to which said suit was returnable, filed in said cause his plea of privilege to be sued in Runnels county, where he resided; that on the 14th day of April, eight days after the filing of said plea of privilege, appellee filed in said cause an affidavit controverting said plea on the ground that the assault alleged as the basis of his cause of action therein asserted was committed in McLennan county; that no action was taken at said term at which said plea and controverting affidavit were filed; that no service of said controverting affidavit upon appellant was ever had; that on September 23, 1926, at the next succeeding term of court, appellee filed in said cause a motion to be allowed to take a nonsuit therein; that on October 2, 1926, appellant filed an exception to said controverting affidavit on the ground that it was filed too late, in that it was filed more than five days after the filing of his plea of privilege; that appellant also answered said affidavit and alleged that appellee had prior thereto filed this suit in the Seventy-Fourth district court and was seeking thereby to avoid the effect of his failure to file his controverting affidavit within the time prescribed by law, and that the court was without jurisdiction to dismiss said cause, but that the only order which said court could properly enter was one transferring the same to Runnels county for trial. It was agreed that the court granted appellee's motion to be allowed to take a nonsuit and dismissed said cause. It was further agreed that "the cause of action sued on by plaintiff occurred in McLennan county," and that venue was properly laid therein, unless appellant's right to have such cause of action tried in Runnels county had become res judicata by reason of the proceedings in the district court of McLennan county, Tex., Nineteenth judicial district, as above stated. The court overruled said plea of privilege, and this appeal is prosecuted from said action.

Opinion.

Appellant contends that the court erred in overruling his plea of privilege. The only ground submitted as a basis for such contention is that the question of venue was, by reason of said proceedings in the district court of McLennan county, Nineteenth judicial district, res judicata, and that his right to have the cause of action asserted by appellee herein tried in Runnels county was conclusively established thereby. An order or judgment of a trial court sustaining or overruling a plea of privilege is interlocutory. Magouirk v. Williams (Tex. Com. App.) 249 S. W. 185, 186; Perkins v. Texas Bank & Trust Co. (Tex. Com. App.) 249 S. W. 186, 187; Izaguirre v. Evans (Tex. Com. App.) 249 S. W. 187, 188. Nevertheless, such an order is given by the statute some of the qualities of a final judgment. A separate hearing on the issues raised by the plea of privilege and affidavit controverting the same is provided for. It is further provided that an appeal from the order or judgment of the court thereon may be prosecuted by either party, and that in event such plea of privilege is sustained and the case ordered transferred to another county, such appeal shall suspend the enforcement of such order. R. S. art. 2008. It has been held in this connection that a failure to appeal from the order entered on a plea of privilege at the term of court at which such order was made and entered is a waiver of any right to thereafter complain of the same. Smith Bros. Grain Co. v. Windsor & Stanley (Tex. Com. App.) 255 S. W. 158. So such an order from which no appeal has been prosecuted has been held to have a sufficient element of finality to support a plea of res judicata. Old v. Clark (Tex. Civ. App.) 271 S. W. 183, 185. To support a plea of res judicata in cases tried before the court there must have been after hearing, or an opportunity therefor, a determination of the issues involved, and an order made or judgment of the court pronounced thereon. It is the order or judgment that adjudicates the issues. Unless such order is made there is no adjudication and nothing upon which a claim of res judicata can be based. Foster v. Wells, 4 Tex. 101, 104; Magee v. Chadoin, 30 Tex. 644, 667, 668; Houston v. Musgrove, 35 Tex. 595; Philipowski v. Spencer, 63 Tex. 604, 608; Scherff v. Missouri Pacific Ry. Co., 81 Tex. 471, 472, 473, 17 S. W. 39, 26 Am. St. Rep. 828; Texas Land & Loan Co. v. Winter, 93 Tex. 560, 563, 564, 57 S. W. 39; Dixon v. Sanderson (Tex. Sup.) 6 S. W. 831; Kuehn v. Kuehn (Tex. Com. App.) 242 S. W. 719, 720. A judgment of dismissal on demurrer, to be available in support of a plea of res judicata, must be a definite judgment of condemnation or dismissal by the court upon the merits of the issue determined. A judgment of dismissal in pursuance of a voluntary nonsuit is not such a judgment. Scherff v. Missouri Pacific Ry. Co., supra; Foster v. Wells, supra; Logan v. Stephens County (Tex. Civ. App.) 81 S. W. 109, 111; Buelin v. Smith (Tex. Civ. App.) 294 S. W. 317, 319, par. 3, and authorities there cited. The district court for the Nineteenth judicial district in the proceedings had therein did not determine the issue of venue nor make any order thereon. The general rule is that a judgment of dismissal in pursuance of a voluntary nonsuit not only arrests further proceedings in the cause, but also annuls what has been already done therein. Scherff v. Missouri Pacific Ry. Co., supra. We think this rule applies to the issue of venue in cases where there has been neither hearing nor order on the plea of privilege prior to the taking of a nonsuit therein.

The right of a plaintiff to take a nonsuit notwithstanding the pendency of an uncontroverted plea of privilege has been expressly declared by our Supreme Court. Atlantic Oil Producing Co. v. Jackson, 116 Tex. 570, 296 S. W. 283; H. H. Watson Co. v. Cobb Grain Co. (Tex. Com. App.) 292 S. W. 174, 177. Appellant relies on certain expressions in the latter case to sustain his contention. In that case the plea of privilege was filed July 7, 1924. No controverting affidavit was ever filed. The court, however, in this connection, in the course of the opinion rendered therein, said:

"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 judgment appealed from in that case was rendered on November 10, 1924, at a subsequent term of the court. The recitals therein show that the parties announced ready for trial; that it appeared to the court that a plea of privilege had been filed and not controverted; that the court heard and considered the evidence, law, and argument of counsel; and that before he had intimated what his decision would be, the plaintiff requested permission to take a nonsuit, which permission was granted and the cause dismissed. The court in the course of the opinion in that case, with reference to said recitations, said:

"These recitations in the judgment unalterably fixed the venue of any suit involving any subsequent controversy between the parties, relating to the subject-matter of the original suit in the county where the defendants reside as stated in their plea of privilege. The venue of such subsequent suit, if any, has become res adjudicata, thus and thereby securing to the defendants in error every substantial right which they claimed in their plea of privilege. Old v. Clark (Tex. Civ. App.) 271 S. W. 183."

In the case of Old v. Clark, cited in said opinion, the plea of privilege had been duly filed and regularly controverted. The court, after full hearing on the issues thus raised, entered an order transferring the cause from Dallas to Runnels county, from which order no appeal was taken and in pursuance of which order the case was duly...