R-F Finance Corporation v. Jones

• Decision Date: 25 May 1932
• Docket Number: No. 3824.,3824.
• Parties: R-F FINANCE CORPORATION v. JONES et ux.
• Court: Texas Court of Appeals

50 S.W.2d 475

R-F FINANCE CORPORATION v. JONES et ux.

No. 3824.

Court of Civil Appeals of Texas. Amarillo.

May 25, 1932.

Appeal from Gray County Court; S. D. Stennis, Judge.

Suit by H. C. Jones and wife against E. S. Stewart and the R-F Finance Corporation. The case was dismissed as to defendant first named, and from a judgment overruling the plea of privilege of defendant last named, such defendant appeals.

Affirmed.

E. M. Robertson, of Wichita Falls, for appellant.

Will R. Saunders, of Amarillo, and E. F. Ritchey, of Miami, for appellees.

JACKSON, J.

On July 23, 1931, the appellees instituted this suit returnable to the August term of the county court of Gray county, Texas, against E. S. Stewart and the R-F Finance Corporation, to recover $393 for the alleged conversion in Gray county, Tex., of their Ford automobile.

No service was had on E. S. Stewart and the case as to him was dismissed.

The appellant, R-F Finance Corporation, prosecutes this appeal from a judgment of the court overruling its plea of privilege.

The record discloses that appellees, on or about March 25, 1931, owned the Ford car in controversy against which appellant held a valid chattel mortgage lien to secure the payment of a note dated August 18, 1930, for the sum of $297, payable in eight monthly installments, the first seven for $38 each and the last for $31. The first installment was due on the 18th day of September, 1930, and one of the remaining installments was due on the 18th day of each succeeding month until the note was satisfied. The appellees paid the first five installments, but defaulted in the payment of the installments due in February and March, 1931. About March 25th, the appellant's agent demanded from appellees the payment of the past due installments, but at that time orally agreed that if appellees would deliver the car to said agent and within thirty days satisfy the unpaid installments, the charge for storage, and an additional consideration of $5, that appellant would hold the car in Pampa for a period of thirty days; that if the appellees complied with such agreement within said time, the car would be returned to them, but if they failed to comply therewith the automobile would be sold. On this agreement the appellees delivered the car. and within less than ten days thereafter tendered to appellant's agent, in cash, the entire balance of $107 due on the note and mortgage, the storage charge, and the additional consideration of $5, and demanded the return of the car. Appellant, through its agent, had, before such tender, sold the car and appropriated the proceeds thereof to its own use and benefit. The appellees seek to recover the value of their equity in the automobile, which they say was the sum of $393, and allege that by the sale thereof the appellant was guilty of conversion in Gray county, Tex. On August 14, 1931, the appellant, a private corporation, filed its plea of privilege, asserting that it was not a resident of Gray county at the time of the institution of the suit or procuring of service upon it, that it had no agent in Gray county, and asked that the case be transferred to Wichita county, where its principal office and place of business are located. On August 18th thereafter the appellees filed their controverting affidavit to the plea of privilege, maintaining that the court in Gray county had jurisdiction under each of subdivisions 4, 9, and 23 of article 1995 of the Revised Civil Statutes, setting out in detail the facts which they claim authorize the court to retain jurisdiction of the case.

The court set the plea of privilege for hearing on September 2d. The clerk issued and had served on appellant the notice of the controverting affidavit and the hearing, but inadvertently dated it September 18, 1931. On September 2d appellant appeared and filed its motion to quash said notice because defective, having been issued on September 18, 1931, which was not a present but an impossible date, and the court on the same day sustained the motion. The August term expired on September 5th thereafter, and it was impossible to issue and re-serve appellant with notice of the controverting affidavit and the hearing on the plea for said term, and by proper order the court granted appellees a continuance on the issues made by the plea and affidavit until the next term of the court. A second notice was issued and served, commanding appellant to appear on November 16, 1931, of the next regular term, on which date the appellant appeared and filed its motion urging the court to sustain its plea of privilege and transfer the case to Wichita county, for the reason that said plea had not been heard and disposed of by the court during the term at which it was filed. The appellant also at the same time presented its general demurrer to the controverting affidavit, the appellees amended, and a hearing was had, and the general demurrer and the...