Murphy v. Dabney

• Decision Date: 19 December 1918
• Docket Number: (No. 386.)
• Citation: 208 S.W. 981
• Parties: MURPHY v. DABNEY.
• Court: Texas Court of Appeals

208 S.W. 981

MURPHY v. DABNEY.

(No. 386.)

Court of Civil Appeals of Texas. Beaumont.

December 19, 1918.

On Motion for Rehearing, February 14, 1919.

Appeal from Liberty County Court; C. N. Smith, Judge.

Suit by J. F. Dabney against A. Murphy. From an order overruling his plea of privilege, defendant appeals. Reversed and remanded, with instructions to transfer to another county.

C. R. Wilson, of Liberty, for appellant.

H. E. Marshall, of Liberty, for appellee.

BROOKE, J.

This suit was filed on the 1st day of October, 1917, in the county court of Liberty county, Tex., to foreclose a common-law lien upon a boiler located upon inclosed premises owned and occupied by appellee and in his possession, for a demand or debt for rent arising out of the use of said premises for the location thereon of certain sawmill machinery, including the boiler sought to be foreclosed upon by appellee. The premises where the boiler was left in appellee's possession are situated in Liberty county, Tex. The county court of Liberty county, where the suit was filed, convened on the 21st day of January, 1918, and on the first day of the term appellant filed a plea of privilege, claiming proper venue of the case to be in the county court of San Augustine county, Tex., where he lived. On the 22d day of January, 1918, appellant verbally ruled appellee for security for costs, and appellee complied with the rule on the 7th day of February, 1918. In taking the order ruling appellee for costs, it was, at the request of appellant, entered "reserving plea of privilege." The case was called for hearing on the plea of privilege on the 7th day of February, 1918, and the court overruled the plea of privilege on the ground that the same had been waived by the rule for costs, and upon the further ground that the nature of the suit showed that the court had venue of the case. After the court had overruled the plea of privilege, appellee moved the court to set aside the order so made, and to grant appellant a hearing upon the allegations of his plea of privilege and appellee's written answer filed. This motion appellant resisted, and the court overruled it. Appellant appealed from the order of the court overruling his plea of privilege.

We are confronted with several propositions that are necessary to be determined in this case. When the appellant, Murphy, appeared in the county court of Liberty county, he did so to file his plea of privilege to be sued in the county in which he lived, which he did on the first day of the term. This was under the act passed by the 35th Legislature, chapter 176, p. 388 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), and conforms strictly thereto, which amended the law heretofore governing pleas of like character. Section 1 of this act is as follows:

"A plea of privilege to be sued in the county of one's residence shall be sufficient, if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, * * * nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that none of the exceptions to the exclusive venue in the county of one's residence mentioned in article 1830 or article 2308 of the Revised Statutes exist in said cause; and such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue. If, however, the plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending. Upon the filing of such controverting plea the judge or the justice of the peace shall note on same a time for a hearing on the plea of privilege; provided, however, that the hearing thereon shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten full days exclusive of the day of service and day of hearing. If the parties agree upon a date for such hearing it shall not be necessary to serve the copy above provided for. Either party may appeal from the judgment sustaining or overruling the plea of privilege, and if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal."

Afterwards he ruled for costs and had the court to enter the order without prejudice to his plea of privilege. We are of opinion that, when the plea of privilege was filed, a mere entry of the fact by the court was not a waiver of the plea of privilege, and especially is this true in the light of the fact that the court had a right to and did reserve a plea of privilege without prejudice to the rights of the parties with reference to appellant's plea of privilege. In other words, we mean to hold that the mere entry of the rule for costs by the court, with the proviso that it was without prejudice to the right of the party with reference to his plea of privilege, was not a waiver of the plea of privilege, and we may say in this respect that we are of the opinion, notwithstanding the case of Brown v. Reed, 62 S. W. 73, that it would not have been a waiver, even though there had been no express reservation of the rights of the party under his plea of privilege, but that the court, no controverting affidavit having been filed, should have immediately changed the venue of the same to San Augustine county. We are not able to understand how, having reserved the right accorded him under his plea of privilege in the order of the court, it is possible that the court found that there had been a waiver of his plea of privilege by the mere entrance of the order, especially so as all the rights of the party had been especially reserved.

The statute, as above stated, was amended with the idea evidently in the minds of the Legislature that when parties were sued out of the county of their residence, and the law had been complied with in reference to a plea of privilege, same having been filed under oath that it would not be necessary for a party to be present and to urge his plea of privilege, in order that the court should hear proof or take any other action than to change the venue, as required by law. The fact that there was no controverting affidavit filed, which is made obligatory, and which would, in the present case, make the same an issue of fact to be tried by the court, the court, in our view, should have promptly granted the change of venue to San Augustine county. There was nothing further that the court could do, the plea having been declared by the law to be prima facie proof of the statements therein made. Therefore, in our view of the law, even if any further action could have been considered by the court, the same would necessarily have to be raised by a controverting affidavit.

In view of the premises, we are of the opinion that nothing is left for us to do except to reverse this cause and send the same back to Liberty county, Tex., with instructions that the court change the venue to San Augustine county, Tex., and thereupon the order is made reversing this cause, and returning the same to Liberty county, with instructions that the court transfer the same to San Augustine county, and it is accordingly so ordered.

On Motion for Rehearing.

HIGHTOWER, C. J.

As will be seen from the original opinion reversing the judgment and remanding this cause with instructions, this court discussed only the assignment of error relating to the action of the trial court in overruling appellant's plea of privilege based upon the view entertained by the trial court that appellant had waived such plea by ruling the plaintiff below for costs.

In the motion for rehearing filed by appellee, he earnestly insists that this court was in error in...