Price & Beaird v. Eastland County Land & Abstract Co.

• Decision Date: 27 March 1919
• Docket Number: (No. 946.)
• Citation: 211 S.W. 478
• Parties: PRICE & BEAIRD v. EASTLAND COUNTY LAND & ABSTRACT CO. et al.
• Court: Texas Court of Appeals

211 S.W. 478

PRICE & BEAIRD v. EASTLAND COUNTY LAND & ABSTRACT CO. et al.

(No. 946.)

Court of Civil Appeals of Texas. El Paso.

March 27, 1919.

Rehearing Denied April 24, 1919.

Appeal from District Court, Eastland County; Joe Burkett, Judge.

Suit by the Eastland County Land & Abstract Company and others against Price & Beaird and others. From an order overruling the plea of privilege of Price & Beaird, they appeal. Reversed and remanded, with instructions.

Price & Beaird, of Tyler, in pro. per.

Earl Conner, of Eastland, for appellees.

HIGGINS, J.

The Eastland County Land & Abstract Company, A. H. Johnson, its president, and C. U. Connellee, its secretary, filed this suit in the district court of Eastland county against E. P. Price and J. W. Beaird, composing the firm of Price & Beaird, I. N. Cross and H. E. Lawrence.

The material allegations of the petition are as follows: The Eastland Land & Abstract Company (hereinafter designated company) is a corporation domiciled in Eastland county, where Johnson and Connellee also reside; Price, Beaird, and Cross reside in Smith county, Tex.; Cross being county clerk of said county; Lawrence resides in, and is sheriff of, Eastland county.

In February, 1917, Price & Beaird filed suit in the justice court of Smith county, against the company to recover damages in the sum of $90. Citation in the suit was issued and served too late to require answer at the February term. In due time the company filed its plea of privilege to be sued in Eastland county, and presented same, but the justice court arbitrarily, unlawfully, and willfully overruled the plea and on March 21, 1917, rendered judgment against the company for the sum of $76.95. The company perfected an appeal to the county court of Smith county, with Johnson and Connellee as sureties upon its appeal bond. In the county court the plea of privilege was again presented, and the facts sustained the plea, but the court arbitrarily, willfully, deliberately, and wrongfully overruled the plea, assumed jurisdiction over the person of the company, Johnson, and Connellee, and rendered judgment against them for the sum of $76.95 and costs. Cross, as county clerk, issued execution upon the judgment, which had been placed in the hands of Lawrence, as sheriff of Eastland county, who was about to levy same upon property of the company, Johnson, and Connellee. It was further alleged that in said suit the justice and county courts of Smith county have no jurisdiction over the person of the company, Johnson, and Connellee; that the company owed Price & Beaird nothing and that the acts of the justice and county courts of Smith county were wrongful, willful, malicious, arbitrary, and without legal justification. The prayer of the petition was as follows:

"Plaintiffs pray for a writ of injunction to issue against the said Price & Beaird, a firm composed of E. P. Price and J. W. Beaird, and each of them, and against the said I. N. Cross and the said H. E. Lawrence, restraining them and each of them from issuing or causing to be issued any other and further process on said county court judgment at Tyler, Tex., and from enforcing the same, and restraining them and their agents and representatives from so doing, and that the said H. E. Lawrence, his agents, and representatives be restrained from making a levy of said execution against any of the property of plaintiffs until the further orders of this court; that upon final hearing hereof that said county court judgment as rendered at Tyler, in Smith county, Tex., be held null and void and of no force or effect, and for such other and further relief, whether in law or equity, as the facts on a hearing hereof may show them entitled to, as in duty bound will ever pray."

A temporary injunction, as prayed for, was granted by the district judge of Eastland county.

Price & Beaird filed a plea of privilege, claiming the right to be sued in Smith county. They averred their residence to be in Smith county, and, further, that the suit was to enjoin the execution of a judgment of the county court of Smith county. The plea complied with the provisions of chapter 176, Acts 35th Legislature, p. 388 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903). The question was also raised by exception to the petition.

Appellees filed a controverting plea, in which the allegations of its petition were simply reiterated. At the October term, 1917, of the district court of Eastland county, appellant's plea of privilege was overruled and from this order this appeal is taken.

Opinion.

There is no bill of exception or statement of facts to show the evidence adduced upon the hearing of the plea, but this is of no consequence, since the allegations of appellees' petition and controverting plea affirmatively disclose that the proper venue of the case is in Smith county.

The suit is to enjoin the execution of a judgment of the county court of Smith county, and under the provisions of article 1830, subd. 17, R. S., such suits "shall be brought in the county in which such judgment was rendered." Subdivision 30 of said article says:

"Whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given."

Furthermore, article 4653 provides that—

"Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered."

These statutes are imperative, but have no application, when the judgment attacked is void, in which case they may be attacked in any court, by any one. Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Bender v. Damon, 72 Tex. 92, 9 S. W. 747; Ferguson v. Fain, 142 S. W. 1184; Baker v. Ry. Co., 107 Tex. 566, 182 S. W. 287. For the general rule as to...