Old v. Clark

• Decision Date: 28 March 1925
• Docket Number: (No. 9326.)
• Citation: 271 S.W. 183
• Parties: OLD et al. v. CLARK.
• Court: Texas Court of Appeals

271 S.W. 183

OLD et al. v. CLARK.

(No. 9326.)

Court of Civil Appeals of Texas. Dallas.

March 28, 1925.

Appeal from District Court, Dallas County; Kenneth Force, Judge.

Action by J. A. Old and another against Edythe E. Clark. From an order sustaining a plea of privilege, and transferring the cause, plaintiffs appeal. Affirmed.

Spence, Haven, Smithdeal & Spence, of Dallas, for appellants.

Gross & Zivley, of Mineral Wells, and Charles A. Rasbury, of Dallas, for appellee.

JONES, C. J.

This is an appeal from an order of the district court of Dallas county sustaining a plea of privilege and transferring this cause to the district court of Palo Pinto county, the domicile of appellee. The facts necessary to a consideration of this appeal are as follows:

On September 18, 1923, appellant J. A. Old, for himself and as next friend for his minor son, James E. Old, filed two separate suits in district courts in Dallas county. These two suits were consolidated by order of the court. The basis of these suits was a charge of active negligence against appellee Edythe Clark, in reference to the driving of her automobile in the town of Highland Park, Dallas county, Tex., and which directly resulted in a collision between said automobile and the motorcycle ridden by James E. Old. It was alleged that the said James E. Old received serious and permanent injuries as a direct result of the collision caused by said negligence, and the recovery of damages was sought in each of the suits.

The plea of privilege was in proper form and timely filed. Approximately 39 days after appellee, as defendant in the suit below, was required to answer under the Practice Act applying to district courts of Dallas county, appellants duly filed a controverting plea, sufficient as to allegations of fact to bring the venue of this case within the provisions of subdivision 9 of article 1830, Revised Statutes, 1911, and hence sufficient, if sustained by proof, to maintain the venue of this suit in Dallas county. Appellee filed an answer to this controverting plea, consisting of an exception to the consideration of same, on the ground that it showed on its face that it was filed after the time allowed by such Practice Act for filing such controverting plea, and a plea of res judicata to the effect that all issues of venue raised in this suit had been heretofore adjudicated, in that two similar suits had theretofore been filed by appellants against appellee in the district courts of Dallas county and consolidated by an order similar to the one in the present cases; that these two suits were identical in subject-matter with the two later suits in which the present plea of privilege was filed; that appellee filed a plea of privilege in the former suits and appellants filed a controverting plea identical with the controverting plea filed in the case at bar; that a trial was had on the former plea of privilege, at which the same evidence was offered by appellants to sustain the venue in Dallas county as was offered by them in the case at bar; that the trial court sustained said former plea of privilege and entered a valid order transferring said consolidated cause to Palo Pinto county and same was transferred; that appellant duly excepted to the order entered by the court on the former plea of privilege and gave notice of appeal, but no appeal was ever perfected in said case, and the time for review of said action on appeal had long since passed. There was no order entered on appellee's exception, and same must be considered waived. The allegations in the answer on the plea of res judicata were sustained by the evidence.

Appellant urges by appropriate assignments and propositions of law: (1) That the negligent operation of an automobile causing the injury of another is a trespass, within the meaning of section 9, art. 1830, of the Revised Statutes of 1911, and permits the suit for damages sustained by reason of the injury to be maintained in the county in which the injury occurred; (2) an order sustaining a plea of privilege is an interlocutory order, and is not res judicata of the question of venue on the bringing of a second suit by the same plaintiff, on the same cause of action, and against the same defendant, provided the second suit has not gone to judgment and there was no appeal from the order sustaining the plea of privilege in the first suit.

Appellee answers: (1) That at the time appellants filed their contest of the plea of privilege the trial court had lost jurisdiction to try the issues thus raised, because said plea was not filed within the time required by the Practice Act applying to district courts of Dallas county; (2) that the evidence offered by appellants at the trial of the cause did not sustain the claim that appellee committed a trespass in the manner alleged, and that subdivision 9 of article 1830 of the Revised Statutes did not apply; (3) that, if the evidence of appellants at the trial of the plea of privilege was sufficient to sustain the venue under said subdivision of said statute, appellee introduced evidence in conflict therewith and this conflict was resolved by the trial court in favor of appellee; (4) that the judgment in the former case, sustaining the plea of privilege, was a final judgment on the issue of venue, and res judicata of the issues at this trial.

Appellants having alleged that the injuries from which the damages flow were inflicted in Dallas county, Texas, and were caused by the active negligence of appellee, and having sustained this allegation by proof, this case was brought within section 9, art. 1830, of our Revised Statutes. Venue of the suit,...