Norris v. Gulf Production Co.
| Decision Date | 27 February 1941 |
| Docket Number | No. 11182.,11182. |
| Citation | 149 S.W.2d 681 |
| Parties | NORRIS et al. v. GULF PRODUCTION CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Norman Atkinson, Judge.
Action by F. A. Norris and others against the Gulf Production Company and others to recover damages for the conversion and appropriation of oil and gas produced from realty allegedly owned by plaintiffs. From an order sustaining a plea of privilege, the plaintiffs appeal.
Affirmed.
Clay Cooke, of Fort Worth, for appellants.
Fouts, Amerman & Moore, of Houston, for appellee Plummer.
John E. Green, Jr., William Stone Wells, and Archie D. Gray, all of Houston, for appellee Gulf Production. Co.
This is an appeal from an order sustaining a plea of privilege in an action brought in the district court of Harris County by appellants, F. A. Norris et al., against appellees, Gulf Production Company and others, wherein they alleged their ownership of certain described lands, and the oil and gas leasehold estates therein, situated in Victoria County, Texas, and sought damages for the conversion and appropriation of the oil and gas produced therefrom.
Appellants' original petition was filed on August 17, 1937. Appellees were cited to appear on September 13, 1937. On September 11, 1937, prior to the return day in said citation, appellees, Gulf Production Company and Albert Plummer, filed their respective pleas of privilege to be sued in the district court of Victoria County, under Subdivision 14 of Article 1995, Revised Civil Statutes of 1925, Vernon's Ann.Civ. St. art. 1995, subd. 14.
On October 11, 1937, appellants filed their controverting affidavit in which they sought to retain venue of said action in Harris County. No motion was filed by appellants seeking permission of the court to file said controverting plea after the expiration of five days after the filing of said plea of privilege. No copy of said controverting plea was served on appellees, and no hearing was had on said pleas of privilege or said controverting affidavit until August 12, 1940.
On June 15, 1940, appellants applied for and were granted leave to file an amended petition, wherein they sought recovery of their proportional interest in the net profits derived from the oil and gas produced from said land.
On a hearing on appellees' pleas of privilege on August 12, 1940, an order was entered sustaining said pleas and directing the transfer of said cause to the district court of Victoria County. Appellants have appealed from this order.
The parts of said Article 1995 material to this appeal, and Subdivision 14 thereof on which appellees rely, read:
Article 2007, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 2007, provides that, if the plaintiff in a suit desires to controvert a plea of privilege, "he shall within five days after appearance day 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."
Article 2008, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 2008, provides that upon the filing of a controverting plea a hearing shall be had thereon after a copy of such controverting plea shall have been served on each defendant, or his attorney, for at least ten days, exclusive of the day of service and the date of hearing.
Article 2019, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 2019, provides that if a plea of privilege is sustained, the cause shall be transferred to the court having jurisdiction thereof.
It is the established rule in this state that a plea of privilege, sufficient on its face and filed in due time, deprives the court in which the action is filed of jurisdiction to enter any other judgment than one transferring the case, under R.S.Article 2019, unless a controverting affidavit is filed within five days after appearance day, under said Article 2007, and that, if so filed, a hearing thereon cannot be had until defendants who have filed pleas of privilege have been served with notice thereof for ten full days. Galbraith v. Bishop, Tex. Com.App., 287 S.W. 1087.
It is further held that said Article 2007, which prescribes a limitation upon the time when a controverting affidavit to a plea of privilege shall be filed, is mandatory (McKittrick v. McDaniel, Tex.Civ. App., 300 S.W. 97; Sibley v. Continental Supply Co., 116 Tex. 403, 292 S.W. 155), and that if a controverting affidavit is not filed within the time prescribed under said Article 2007, the result is the same as if no controverting plea had been filed and that, under said Article 2019, the only jurisdiction the court then has is to enter judgment sustaining the plea of privilege and ordering the cause transferred to the proper court for trial. Russell Grader Mfg. Co. v. McMillin, Tex.Civ.App., 271 S.W. 124; Green v. Brown, Tex.Civ.App., 271 S.W. 394; Barnum et al. v. Lancaster Hardware Co., Tex.Civ.App., 40 S.W.2d 1103.
In construing said Article 2007 it is further held that the burden rests upon the plaintiff to procure the disposition of a plea of privilege during the term of court at which it is filed, or to show that the business of the court prevented such consideration at that term. Bundrant v. Woodley, Tex.Civ.App., 32 S.W.2d 664; White v. White, Tex.Civ.App., 105 S.W.2d 779; American Fidelity & Cas. Co. v. Jones Transfer & Storage Co., Tex.Civ.App., 46 S.W.2d 1054; Klapuch v. Dickey, Tex.Civ. App., 91 S.W.2d 484; Brashears v. Strawn National Bank, Tex.Civ.App., 57 S.W.2d 177.
Article 2013, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 2013, provides that pleas to the jurisdiction, pleas in abatement, and other dilatory pleas and demurrers, not involving the merits of the case, shall be determined during the term of court at which they were filed, if the business of the court will permit.
Rule 24 of the County and District Courts provides that, "All dilatory pleas, and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of the parties with the consent of the court; and all such pleas and...
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Brader v. Ellinghausen, 14272.
...This suit was one to establish an interest in land, and to recover damages for the value of oil taken therefrom. Norris v. Gulf Production Co., Tex.Civ.App., 149 S.W.2d 681. This case was similar to the Navarro Oil Co. case, supra, and the same ruling was made by the Galveston Court of Civi......