Panther Oil & Grease Mfg. Co. v. Crews

• Decision Date: 16 January 1939
• Docket Number: No. 4975.,4975.
• Parties: PANTHER OIL & GREASE MFG. CO. v. CREWS et al.
• Court: Texas Court of Appeals

124 S.W.2d 436

PANTHER OIL & GREASE MFG. CO. v. CREWS et al.

No. 4975.

Court of Civil Appeals of Texas. Amarillo.

January 16, 1939.

Rehearing Denied February 6, 1939.

Appeal from Lubbock County Court; J. J. Dillard, Judge.

Suit by H. W. Crews against Panther Oil & Grease Manufacturing Company and another to enjoin execution issued out of justice court and to set aside the judgment. From a judgment for plaintiff, named defendant appeals.

Reversed and remanded.

Bradley & Wilson, of Lubbock, for appellant.

Max Coleman, of Lubbock, for appellees.

FOLLEY, Justice.

This suit was filed in the County Court of Lubbock County, Texas, by the appellee, H. W. Crews, against the appellant, Panther Oil & Grease Manufacturing Company, and Tom Abel, Sheriff of Lubbock County, to enjoin an execution issued out of the Justice Court of Precinct No. 1 of Tarrant County, Texas, on a judgment rendered therein on September 23, 1937 in cause No. 59605 on the docket of such court wherein the appellant recovered judgment against H. W. Crews for $59.57 and costs, and to set aside such judgment, alleging the same to be void. A temporary injunction was issued as prayed for, but upon final hearing the same was dissolved. In such hearing, however, the trial court decreed that the justice court judgment was void as against the appellee Crews in Lubbock County.

The Tarrant County suit was the outgrowth of the sale of a quantity of paint by the appellant to Crews which was alleged by the latter to be of an inferior grade and worthless. Such suit was filed on August 20, 1937, and the appellee Crews was duly served with citation. On September 9, 1937, the appellee, through his attorney Max Coleman of Lubbock, filed a plea of privilege which he alleges sought to transfer the cause to Lubbock County, the county of his residence. The contents of such plea of privilege are undisclosed by the record. On September 10, 1937, a controverting affidavit was filed by the appellant the contents of which are also unrevealed by the record. On September 23, 1937, a hearing was had in such justice court upon the plea of privilege and the controverting affidavit, whereupon the justice of the peace overruled the plea of privilege. The judgment in this connection was introduced in evidence and recited that "The plaintiff appeared by attorney and the defendant, though duly cited, failed to appear. The Court after having heard the evidence and argument of counsel, is of the opinion that the law is with the plaintiff and against the defendant." Such judgment concluded by an order overruling the plea of privilege and ordering the suit tried upon its merits. Whether the above quoted portion of the judgment relative to the service upon the appellee herein meant that he was cited to appear upon a hearing of the plea of privilege and controverting affidavit or merely referred to his being duly cited upon the merits of the case, is also undisclosed by the record. However, on the same day that the plea of privilege was overruled the judgment was rendered in the justice court which formed the basis of the attack in the court below. There was no appeal or certiorari from this judgment.

The appellant attacks the jurisdiction of the County Court of Lubbock County in rendering the judgment herein declaring the Tarrant County judgment void. The appellant bases such assignment upon two theories, first, that the amount in controversy is below the jurisdiction of the County Court, and secondly, the Tarrant County judgment not being void on its face, that the same could not be collaterally attacked in the County Court of Lubbock County.

The first contention of the appellant must be overruled by reason of the fact that the County Court of Lubbock County is one of the county courts of Texas upon which the Legislature has conferred original concurrent jurisdiction with the justice courts in civil matters. Further, in this connection, article 2249, R.C.S. of Texas, Vernon's Ann.Civ.St. art. 2249, permits an appeal to this court from the county court although the amount in controversy is less than $100, since the county court had original jurisdiction of the controversy and the suit herein originated in the county court. Stavely v. Stavely, Tex.Civ.App., 94 S.W.2d 545; Campsey v. Brumley, Tex.Com.App. 55 S. W.2d 810; Section 22, Article 5, Constitution of Texas, Vernon's Ann.St.

The second theory of the appellant presents a more difficult situation. We think it well settled the judgment in question cannot be successfully attacked in the county court by this collateral proceeding unless such judgment is void. The burden was thus placed upon the appellee to show the invalidity of the judgment. The whole assault upon the judgment in the trial court by the appellee was predicated chiefly on the theory that the same was void and obtained by fraud by reason of the failure of the justice of the peace to inform the appellee or his attorney of the action of such justice of the peace in overruling the plea of privilege, yet the only basis for such contention was the fact that appellee's attorney requested such justice of the peace, by letter accompanying the plea of privilege, to notify him if the plea was overruled. There was no promise on the part of the justice of the peace to do so and we know of no rule of law that would charge him with such duty in the absence of such a promise. Woodard v. Eskridge et al., Tex. Civ.App., 174 S.W. 868. The failure of the justice of the peace to notify the appellee or his attorney of his action on the plea of privilege would certainly not constitute fraud under the facts and circumstances of this case.

The appellee also contends that the judgment in question is void by reason of the fact that the justice of the peace ignored the plea of privilege filed by him in said cause. While it is true under article 2007, R.C.S. of Texas, that the filing of a plea of privilege in conformity to such statute is prima facie proof of the defendant's right to a change of venue, however,...