Miller v. Burnet Mercantile Co., 2900.
| Decision Date | 09 November 1933 |
| Docket Number | No. 2900.,2900. |
| Citation | 65 S.W.2d 505 |
| Parties | MILLER v. BURNET MERCANTILE CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Crockett County; J. G. Montague, Judge.
Suit by Rob Miller against the Burnet Mercantile Company and another. From a judgment of dismissal, plaintiff appeals.
Affirmed.
Collins, Jackson & Snodgrass, of San Angelo, for appellant.
Thos. C. Ferguson, of Burnet, and Carl Runge, of Mason, for appellees.
Prior to the filing of this suit in the district court of Crockett county, the appellee, Burnet Mercantile Company, a corporation, as found by the court in this case, had filed a suit in the county court of Burnet county in cause No. 856 against T. E. Cobb and Rob Miller, in which former suit citation was duly served on each for the July term, 1932, of the Burnet county court. At that term Rob Miller filed his plea of privilege in said cause to be sued in Crockett county, the place of his residence. On the 18th day of August, 1932, at a regular term of the Burnet county court, the Burnet Mercantile Company, plaintiff in the suit, presented its demurrer to Miller's plea of privilege, which demurrer the court, by its order, sustained, thereby holding said plea of privilege to be insufficient, and, so far as the record shows, Rob Miller having no further answer in the case, judgment was entered in favor of the plaintiff Burnet Mercantile Company and against defendants T. E. Cobb and Rob Miller for the sum of $718.36, with costs and interest. So far as the record shows, no appeal or writ of error was prosecuted from the judgment of the Burnet county court. Thereafter in said suit execution was issued out of the county court of Burnet county against T. E. Cobb and Rob Miller and placed in the hands of W. S. Willis, sheriff of Crockett county, for execution.
Thereafter, on the 3d day of September, 1932, this suit was filed by Rob Miller in the district court of Crockett county against the Burnet Mercantile Company and W. S. Willis, alleging that the judgment theretofore rendered against him in the Burnet county court case was void, for the reasons stated, and prayed for a writ of injunction restraining its execution in Crockett county. The district judge of Crockett county, on the presentation of the verified petition and certain verified exhibits, granted and directed the issuance of a temporary writ of injunction as prayed for upon the filing of a bond, which was given, and the writ issued.
The defendants in this suit, the Burnet Mercantile Company and W. S. Willis, each filed answer. Willis answered that he was sheriff of Crockett county; that as sheriff he had in his hands the execution from the county court of Burnet county, stating the direction of said writ; that he did not make a levy by reason of the injunction; that he has no interest in the matter other than as such sheriff, and asked to be discharged free of costs.
Defendant Burnet Mercantile Company answered by motion to dissolve the temporary injunction for reasons stated, viz.: Want of jurisdiction of the district court under article 4656 of the Statutes; the judgment of the Burnet county court is not void; the judge of the district court of Crockett county had no power, under article 4643 of the statutes, to grant the injunction, under the facts stated in the motion; defendant files its verified answer denying the material allegations of the petition. Answer by verified plea in abatement to the jurisdiction of the district court, the judgment of the Burnet county court not being void as affirmatively appears from plaintiff's petition; the jurisdiction to try the case is with the county court of Burnet county. Defendant further answered by general and special exceptions and general denial.
At the April term of the district court of Crockett county the case came on for hearing when the court sustained the motion to dissolve the injunction, and further sustained defendant's plea in abatement and dismissed the suit. The judgment recites that the court heard the evidence on the motion to dissolve and on the plea in abatement, and that both parties agreed to the statement of facts and approved by the court and filed as a part of the record.
The plaintiff, Rob Miller, duly prosecutes this appeal from the judgment of the court as above. The court by order suspended the judgment of the court pending appeal upon plaintiff giving the supersedeas bond fixed by the court.
Opinion.Appellant prosecutes this appeal upon one and the only proposition, as follows: "Since it affirmatively appears from the record of the Burnet County Court that Miller's plea of privilege in statutory form was duly and seasonably filed therein, and that Miller was never served with copy of any controverting affidavit or any notice of hearing thereon but that a general demurrer to his statutory plea of privilege was sustained as against Miller, the Burnet County judgment is void upon its face and may be attacked collaterally by injunction proceedings instituted (evidently meaning instituted) in the District Court of Crockett County, Texas, when it is sought to be used against him in that County."
As sustaining the facts stated in the proposition, appellant in his statement under the proposition copies in his brief, from the statement of facts, the portion of the judgment of the Burnet county court in disposing of the Burnet Mercantile Company's demurrer to Miller's plea of privilege. Omitting the formal parts, it reads:
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