Poole v. Pierce-Fordyce Oil Ass'n

• Decision Date: 15 January 1919
• Docket Number: (No. 6141.)
• Parties: POOLE v. PIERCE-FORDYCE OIL ASS'N.
• Court: Texas Court of Appeals

209 S.W. 706

POOLE v. PIERCE-FORDYCE OIL ASS'N.

(No. 6141.)

Court of Civil Appeals of Texas. San Antonio.

January 15, 1919.

On Motion for Rehearing, March 5, 1919.

Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.

Action in Justice Court by H. C. Pierce and another, trading as partners under the name of Pierce-Fordyce Oil Association, against John A. Poole, Sr. The cause was taken to the county court by certiorari, and from the judgment rendered there against defendant and the sureties on his certiorari bond defendant appeals. Reversed and remanded.

L. H. Browne, of San Antonio, for appellant.

Wm. H. Russell, of San Antonio, for appellee.

MOURSUND, J.

This is an appeal from a judgment rendered on April 20, 1918, for $152.80 in favor of H. C. Pierce and S. W. Fordyce, Jr., trading as partners under the name of Pierce-Fordyce Oil Association, against appellant and the sureties on his certiorari bond. The appellee was cited to appear at the December term of the justice's court, but service was had only five days before the beginning of such term. However, appellant, during such term, on December 30, 1916, filed his plea of privilege to be sued in Presidio county. This plea was overruled during the January term, to wit, on January 22, 1917. The cause was taken to the county court by certiorari on February 19, 1917, and on March 31, 1917, the appellees filed a motion to squash the certiorari, which was continued without prejudice to appellee's rights on April 25, 1917, and overruled on June 2, 1917. On June 2, 1917, appellee filed a motion to strike out the plea of privilege on the grounds: First, that it did not negative defendant's residence in Bexar county at the time the citation was served; and, second, that it had been waived by not being called to the attention of the justice's court during the December term of said court. An order was entered on the same day granting such motion, the court reciting therein that he held the plea insufficient to present the issue of venue. Appellant's bill of exceptions relating to such ruling contains the qualification reciting the facts with reference to what had taken place in the justice's court with reference to the plea, as above detailed, and, further, that the cause came to the county court "on February, 1917, lay here without any action by defendant during the balance of the January term, all of the March and May, 1917, terms, and was not acted on or called to the court's attention until June 2, 1917, and therefore the defendant waived his plea of privilege."

The only question presented is whether the court erred in striking out the plea of privilege. Of course if the plea had been waived, the error, if there was error, in sustaining an exception thereto would be an immaterial one.

As the writ of certiorari was returnable to the March term of the county court, no waiver can be predicated on the failure to obtain a ruling on the plea during the January term. During the March term a motion to dismiss the certiorari was filed, and until it was disposed of the plea of privilege would not be reached for consideration. We, therefore, hold there was no waiver in the county court.

It appears from the qualification to the bill of exceptions that the plea was filed on December 30, 1916, during the December term, 1916, of the justice's court, and was not called to the attention of the justice or passed without prejudice. It is not shown when such term expired, or that any opportunity was had to procure a hearing on the plea of privilege during such term, and we believe the facts stated in the qualification are not sufficient to show a waiver. Aldridge v. Webb & Hill, 92 Tex. 122, 46 S. W. 224; Blum v. Strong, 71 Tex. 321, 6 S. W. 167; Harris Millinery Co. v. Melcher, 142 S. W. 100. The term may have expired on December 30th so far as the record discloses. We cannot take judicial notice of the order of the commissioners' court fixing the terms of said court. But, aside from this, it appears that the bill of exceptions was not filed within the time prescribed by law, and it therefore cannot be considered. Unknown Heirs of Criswell v. Robbins, 152 S. W. 210.

The judgment of the court striking out the plea shows on its face that it is based on a conclusion that the plea is defective, and therefore no presumptions can be indulged that it was based on a finding of waiver. As there is no presumption in support of such a judgment that evidence was heard to show a waiver, it is incumbent on appellee to affirmatively show a waiver, in order to obviate the effect of error, if error there was, in sustaining the exception to the plea.

The only exception urged against the plea is that it failed to state that defendant was not a resident of Bexar county at the time the...