Kirk v. Harrington

• Decision Date: 06 February 1953
• Docket Number: No. 15407,15407
• Citation: 255 S.W.2d 557
• Parties: KIRK v. HARRINGTON.
• Court: Texas Court of Appeals

Page 557

255 S.W.2d 557

KIRK v. HARRINGTON.

No. 15407.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 6, 1953.

Rehearing Denied March 6, 1953.

M. J. Flahive, of Austin, Chas. J. Murray and M. Hendricks Brown, both of Fort Worth, for appellant.

Mays & Mays and Dave Miller, all of Fort Worth, for appellee.

MASSEY, Chief Justice.

Appeal from order overruling appellant's plea of privilege. Affirmed.

This is an appeal from an order overruling a plea of privilege filed by Jesse Kirk, Jr., as the only appellant, to a suit denominated by plaintiff's original petition as W. B. Harrington, plaintiff, v. Jack Kirk Truck Lines, a corporation, defendant, domiciled in Milam County, Texas.

The cause of action was for personal injuries and damages growing out of the appellee Harrington's having been struck by a truck on a highway in Tarrant County, Texas, within the corporate limits of the City of Fort Worth, at about 8:15 P.M., on the evening of April 17, 1952. Suit was filed in Tarrant County and appellee maintained venue therein, based on section 9 of Article 1995, R.C.S.1925, Vernon's Ann.Civ.St. art. 1995, subd. 9, which section allows suits based upon crime or trespass to be brought in the county in which such was committed.

From the record before us, there was never any appearance by any legal entity save by Jesse Kirk, Jr., a individual, whose exact connection with the Jack Kirk Truck Lines, a corporation, if any, is not shown except by these words in the beginning of his plea of privilege: 'Now comes Jesse Kirk, Jr. who has heretofore been served in the name of Jack Kirk and in the business name of Jack Kirk Truck Lines, and showing the court that Jesse Kirk is the same person as Jack Kirk, files this his plea of privilege, * * *.'

The appellee filed a controverting affidavit to this plea of privilege, terming it a controverting affidavit to the defendant's plea of privilege, and he also served some written requests for admissions under Rule 169, Texas Rules of Civil Procedure, upon the attorney who filed the plea of privilege for appellant, as requests for admissions of fact to be made by the defendant. Answers to such requests for admissions were made and filed by appellant, upon whose attorney service of the requests was had. He predicated such answers with the words, 'Now comes the defendant in the above entitled and numbered case, and after having been served with requests for admission * * *,' and he follows with his numbered answers to the requests, each beginning with the words, 'This defendant says * * *.' (Emphasis ours.)

A hearing was had before the court, without a jury, upon the plea of privilege so filed. No motion was ever filed in the trial court or on the appeal to correct any misnomer of the defendant in the original suit. No motion to dismiss this appeal is filed, though appellee argues in his brief that a defendant, 'a corporation,' having been sued, no proper appeal has been taken from the order overruling the plea of privilege.

The notice of appeal is by Jesse Kirk, Jr., and the bond is also by him. The record is silent as to whether or not there is such a concern as Jack Kirk Truck Lines, a corporation, or whether there actually is such a concern being operated by an individual or co-partnership, or otherwise. No showing is made that the defendant as named in the petition, Jack Kirk Truck Lines, a corporation, was ever served or ever appeared in court for any purpose. Neither is there any denial, under oath or otherwise, by anyone that such concern is a corporation. The statement of facts indicates that the appellant and appellee were the only parties present at the hearing in the trial court, and no question was ever raised as to misnomer or as to whether the proper parties were before the court. The court and the parties upon the trial of the plea of privilege treated Jesse Kirk, Jr., as party defendant in the suit, without reference during the course of the hearing as to there being any other party who was or should have been a defendant.

There was no plea in abatement filed in the trial court by appeellee to the plea of privilege filed by Jesse Kirk, Jr., nor any exception to it by appellee on any ground. The trial proceeded as to venue as to Jesse Kirk, Jr. There was an adjudication to the effect that exception to the venue statute existed and the plea of privilege so filed by appellant was overruled. However, such order overruling the plea of privilege bore the title of the suit as originally filed and reads as follows:

'On this the 29th day of September 1952 came on to be concluded the hearing on the defendant's appliation for change of venue in the above cause, and all parties appearing in open Court through their respective attorneys, and the Court, after hearing the evidence and being fully advised, is of the opinion that said plea should be overruled.

'It is therefore ordered, adjudged and decreed by the Court that the plea of privilege filed herein by the defendant be and the same is hereby in all things overruled, to which action the defendant then and there in open Court excepts and gives notice of appeal. * * *'

The appeal bond, bearing the caption of the suit as oiginally filed, recites that 'Whereas, in the above entitled and numbered cause pending in the 96th District Court of Tarrant County, Texas, wherein W. B. Harrington is the plaintiff and Jesse Kirk, Jr. is the defendant, the said Court did on the 29th day of September, 1952, overrule the plea of privilege of the defendant theretofore timely filed to be sued in the County of his residence, * * *.' Said bond is executed by Jesse Kirk, Jr., as principal, along with surety company. No complaint has been made as to said bond by appellee. The transcript and statement of facts on appeal styled the case as same was styled in the suit originally filed, but the case is docketed as Jesse Kirk, Jr., appellant, v. W. B. Harrington, appellee, on appeal, and both parties to the appeal briefed the case under this styling.

The appellant complains that the evidence introduced upon the hearing is wholly insufficient to sustain venue in Tarrant County, Texas, against Jesse Kirk, Jr., under the alleged exception to Article 1995, and appellee counters, claiming that suit having been filed against Jack Kirk Truck Lines, a corporation, with corporate status not having been denied under oath, and the suit not being against Jesse Kirk, Jr., who is the appellant, the evidence was sufficient to show that Jack Kirk Truck Lines, a corporation, was the owner of the truck involved in the collision and that such was being operated by and under the control of said defendant corporation at the time of the injuries. This is followed by counterpoints generally replying to the claim of the appellant as to the insufficiency of the evidence.

At the outset, a question to be determined is whether or not there was a lawful adjudication upon the plea of privilege filed in the court below, from which an appeal was taken, of which this court has jurisdiction. There is no question but had this been a trial on the merits in the court below and Jesse Kirk, Jr., been then and there pleading to the merits and trying the merits, he would have been bound by a judgment rendered in behalf of the plaintiff for damages. Under the circumstances of this case, he would have been bound by the judgment as a true defendant, if not the true defendant, and he would have owed the amount thereunder found as damages to the plaintiff. 65 A.L.R. 1134; White House Lumber Co. v. Denny, Tex.Civ.App Amarillo, 1934, 75 S.W.2d 709 (error refused); Paxton v. First State Bank of Tatum, Tex.Civ.App., Texarkana, 1931, 42 S.W.2d 837; Robinson v. Watkins, Tex.Civ.App., Dallas, 1925, 271 S.W. 288 (error refused); Southern Pacific Co. v. Granham, 1896, 12 Tex.Civ.App. 565, 34 S.W. 135; Butler v. Express Publishing Co., Tex.Civ.App., San Antonio, 1939, 126 S.W.2d 713 (writ refused).

The question is, since all such proceedings were on a dilatory plea filed by Jesse Kirk, Jr., in a suit against a defendant denominated a corporation, whether the proceedings were a nullity or whether they were good proceedings as to Jesse Kirk, Jr., if not as to the defendant named in the suit as filed, to-wit, Jack Kirk Truck Lines, a corporation.

There is no question but that appellant inserted himself in the suit in one of the following capacities: a real party at interest; the real party at interest; or intervener with an ultimate or contingent interest, based upon any liability of the defendant named as a corporation. In any event, his intervention was with interest as a defendant, at least upon the plea of privilege and he should be so treated. 67 C.J.S., Parties, § 69, p. 1009. If appellant was either a real party at interest or the real party at interest, he was entitled to proceed and to file his plea of privilege. If the intervention by him was based upon an ultimate or contingent interest and obligation predicated upon primary liability being established in the named defendant corporation, as in the cases of liability insurance companies insuring such a defendant, etc., then he would have no right to file a plea of privilege. If any such had been filed, it could have been abated. However, no plea of abatement having been filed to the plea of privilege filed by the appellant, the appellee must be held to have accepted the entry as having been made by Jesse Kirk, Jr., as a real party at interest, if not as the real party at interest. 67 C.J.S., Parties, § 145, p. 1148. This being so, the adjudication is binding upon the parties who were in court participating in the proceedings held therein upon the plea of privilege filed by the one of them and controverted by the other on the ground that exception 9 to Article 1995 existed. Should it be required to make a transfer on appellant's plea of privilege, the transfer would be had only in so far as the cause of action filed constituted a...