Miller v. Kountze Corporate School Dist., 1592-5967.

• Citation: 54 S.W.2d 344
• Decision Date: 09 November 1932
• Docket Number: No. 1592-5967.,1592-5967.
• Parties: MILLER et al. v. KOUNTZE CORPORATE SCHOOL DIST. et al.
• Court: Supreme Court of Texas

Page 344

54 S.W.2d 344

MILLER et al. v. KOUNTZE CORPORATE SCHOOL DIST. et al.

No. 1592-5967.

Commission of Appeals of Texas, Section A.

November 9, 1932.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by E. J. Miller and another against the Kountze Corporate School District and others. To review a judgment of the Court of Civil Appeals [35 S.W.(2d) 1076] affirming a judgment for defendants, plaintiffs bring error.

Reversed and remanded.

A. D. Lipscomb, Howth, Adams & Hart, and Elton Cruse, all of Beaumont, for plaintiffs in error.

Oswald S. Parker and W. D. Gordon, both of Beaumont, and James F. Parker and A. L. Bevil, both of Kountze, for defendants in error.

CRITZ, J.

This suit was originally filed in the district court of Jefferson county, Tex., on October 2, 1928, by E. J. Miller and J. H. Yentzen against Kountze corporate school district, and a number of other parties.

We shall hereafter refer to the parties in the order in which they appeared in the district court, to Miller and Yentzen as plaintiffs, and the Kountze corporate school district et al. as defendants.

The plaintiffs filed this suit in the district court of Jefferson county on October 2, 1928. Defendants duly filed their plea of privilege to be sued in the district court of Hardin county, Tex. On January 21, 1929, the district court of Jefferson county heard and sustained the defendants' plea of privilege, and ordered the case transferred to the district court of Hardin county. Plaintiffs excepted to this order and gave notice of appeal, but filed no appeal bond and never took any steps to perfect the appeal. The order therefore became final without appeal.

An examination of the statute, article 199, R. C. S. 1925, shows that Hardin county is a part of the Seventy-Fifth judicial district, composed of the counties of Hardin, Liberty, Tyler, and Chambers. Under the above statute the district court of Hardin county has three 4-week terms per year beginning on "the first Monday in January and on the nineteenth and thirty-third Mondays after the first Monday in January of each year."

An examination of the record discloses that the transcript in this case was not filed in the district court of Hardin county until August 17, 1929.

From the statement we have made it will appear that, at the time the order was made on January 21, 1929, by the district court of Jefferson county transferring the case to the district court of Hardin county, the district court of Hardin county had twelve days remaining of its January term. It further appears by calculation that the next or second term of the Hardin county district court began on May 20, 1929, and expired by operation of law on June 15, 1929. The third term of the Hardin county district court began on the 26th day of August, 1929, and expired on the 21st day of September, 1929.

It will appear from the statement above that plaintiff, having filed his transcript in the Hardin county district court on August 17, 1929, allowed twelve days of the January, 1929, term of the district court of Hardin county, and all of the May term, 1929, to expire before filing the transcript of the case in the district court of Hardin county. They filed it before the August, 1929, term began.

The record further shows that the case was not finally called for trial and dismissed until June 6, 1930. On that date the district court of Hardin county sustained defendants' motion to dismiss and plea of limitation, and finally dismissed the case. On appeal this judgment was affirmed by the Court of Civil Appeals. 35 S.W.(2d) 1076. Plaintiffs bring error. We refer to the opinion of the Court of Civil Appeals for further statement.

It appears from the statement we have made and the record that the District Court of Hardin County dismissed this case on two grounds: (a) Because the plaintiff allowed an unreasonable time to elapse between the sustaining of the plea of privilege by the district court of Jefferson county, and the filing of the transcript and papers in the district court of Hardin county; (b) because plaintiffs' petition shows upon its face that the cause of action therein attempted to be alleged was barred by limitation at the time the original petition was filed in the district court of Jefferson county as to all issues and all defendants.

If either of the above grounds of dismissal are good, the judgments of the two lower courts should be affirmed; if both are erroneous, such judgments should be reversed and the cause remanded to the district court.

Articles 2019 and 2020, R. C. S. 1925, read as follows:

"Art. 2019. If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff."

"Art. 2020. When a plea of privilege is sustained, the court shall order the venue to be changed to the proper court of the county having jurisdiction of the parties and the cause. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed."

An examination of these statutes shows that they provide in substance that, when a plea of privilege is sustained, the cause shall not be dismissed, but transferred to the proper court of some county having jurisdiction of the parties and the cause. It is also provided that the clerk shall make up a transcript of the orders of the original court, etc., and send it with the papers to the clerk of the court to which the venue is changed. It will be noted that the statutes nowhere expressly limit the time in which the transcript and papers can be filed in the court to which the case is removed. Furthermore, the statutes do not, by any express language, define whether it is the plaintiffs' or the defendants' duty to see that the transfer is effected, and the case duly filed in the second court. Under such conditions, since the plaintiffs were prosecuting the suit, we think it was their duty to, within a reasonable time, take steps to effect the actual filing of the cause in the second court.

Defendants contend that, since it was the duty of the plaintiffs, after the cause was ordered transferred, to actually effect the consummation thereof, their delay in doing so from January 21, 1929, until August 17, 1929, during which time a part of the January, 1929, and all of the May, 1929, terms of the district court of Hardin county expired, constituted in law and in fact an abandonment of the suit by the plaintiffs. In this connection defendants contend that they were injured by the delay, in that they were not in as good position to secure testimony when the case was called for trial as they would have been in had the transfer been made promptly. Defendants offered testimony to support their contention of injury, and we presume in favor of the judgment of the trial court that such testimony is true. There is no testimony in the record showing that during the time intervening between the sustaining of the plea of privilege and the filing of the cause in the second court the plaintiffs did any act or made any statement which would lead the defendants to believe that they intended to abandon the suit.

Under the above record, we hold as a matter of law that the trial court erred in dismissing this suit on the ground of abandonment. The record before us shows that the plaintiffs have not been guilty of any negligence in bringing it to trial after its actual filing in the district court of Hardin county. We do not think that the delay in effecting the actual transfer of the cause from one court to the other was sufficiently long to constitute an abandoned suit in the sense that the Hardin county district court, by such delay, lost jurisdiction to try it. Loftus v. Beckmann (Tex. Com. App.) 1 S.W.(2d) 268. If the case had been promptly transferred, and the trial delayed until August 17, 1929, certainly no court would permit it to be treated as an abandoned suit. We see no difference in the two instances; that is, we see no difference between delaying the transfer and delaying the trial after transfer as applied to the law of an abandoned suit.

In the case of Flanagan v. Smith, 21 Tex. 493, our Supreme Court held that, where plaintiff failed to take action by continuance or otherwise in a case in the justice court for four years, he released the defendant and abandoned the suit. It was also there held that a shorter time may justify the same conclusion under some circumstances. We are aware of no authority in this state which holds that the delay which here transpired would deprive the court of jurisdiction to try the case or work a release of the cause of action. If the plaintiffs had done some act, or made some statement during the delay, which justified the defendants in concluding that they did not intend to prosecute the suit further, and if defendants had acted to their injury, on such acts or statements, we would have a different question. No such case is presented here. All the plaintiffs were guilty of was a mere failure to effect the transfer for the time shown.

Our holding to the effect that the trial court erred in dismissing this cause as an abandoned suit makes it necessary for us to pass on the question as to whether the plaintiffs' petition is subject to the special exception that it affirmatively discloses upon its face that the cause of action therein attempted to be alleged was barred by the two-year statute of limitation as to all the defendants and all of the relief sought at the time the suit was filed in the district court of Jefferson county on October 2, 1928.

The petition is very long and complicated....