Saladiner v. Polanco

• Decision Date: 18 February 1942
• Docket Number: No. 9222.,9222.
• Citation: 160 S.W.2d 537
• Parties: SALADINER v. POLANCO et al.
• Court: Texas Court of Appeals

Page 537

160 S.W.2d 537

SALADINER v. POLANCO et al.

No. 9222.

Court of Civil Appeals of Texas. Austin.

February 18, 1942.

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Action by Mike Polanco and others against J. M. Saladiner for the wrongful death of named plaintiff's wife resulting from an automobile collision. From a judgment overruling defendant's plea of privilege, defendant appeals.

Judgment affirmed. See, also, 147 S.W.2d 265; 160 S.W.2d 531.

Coleman Gay and Ewell H. Muse, Jr., both of Austin, for appellant.

Polk Shelton, Chas. F. Herring, Looney & Clark, and Everett L. Looney, all of Austin, for appellees.

BAUGH, Justice.

Appeal is from a judgment of the District Court, after trial to a jury, overruling appellant's plea of privilege to be sued in Brazos County, Texas. This is the second appeal on the venue issue. See Saladiner v. Polanco, 147 S.W.2d 265. The history of the case is as follows:

Polanco, for himself and as next friend of his minor children, sued Saladiner for damages for the death of his wife resulting from a truck collision between one in which the deceased wife was riding and one owned by Saladiner and driven by his employee, on a highway in Travis County in August, 1939. Venue in Travis County was predicated upon allegations of a crime or trespass under Subd. 9 of Art. 1995, R.C.S. 1925. Saladiner filed his plea of privilege to be sued in Brazos County, which was controverted, a hearing had, the plea overruled, and appeal taken. On that appeal we reversed the trial court's judgment on the ground that the controverting plea was insufficient. Saladiner v. Polanco, supra.

Meantime trial was had on the merits, judgment on a jury verdict rendered for plaintiffs, and appeal taken by Saladiner from that judgment, which appeal is now pending in this court. After reversal by his court of the first judgment on the venue issue, and while the appeal from the judgment on the merits was pending in this court, the venue issue was again tried, the second trial thereof being to a jury, and upon the jury answers to special issues, the trial court again overruled Saladiner's plea of privilege, from which judgment this appeal is prosecuted.

Appellant's first contention is that because of the facts above stated the trial court was without jurisdiction to again hear and determine the plea of privilege because it had then lost jurisdiction, through appeal to this court, of the case on its merits.

This question seems never to have been determined by the courts of this State. The general rule that an appeal terminates the authority of the lower court to enter any order which would invade the jurisdiction of the appellate court is well settled. 3 Tex.Jur., § 262, p. 369. But it is also true that a venue issue, where properly raised, is tried separately from the merits of the suit, a separate appeal therefrom authorized, and when such plea is overruled; though appealed from, trial on the merits may be had while such appeal from the venue hearing is pending. Art. 2008, R.C.S.; Allen v. Woodward, 111 Tex. 457, 239 S.W. 602, 22 A.L.R. 1253; Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233. Appeals from the venue hearing and from a trial on the merits may both be pending in the appellate court at the same time. If, on appeal, it is determined that venue did not lie where the suit was filed, and that the defendant was entitled to have the case transferred to the county of his residence, then a reversal of the judgment on the merits follows as a matter of course. State Board of Registration for Professional Engineers v. Hatter, Tex.Civ.App., 139 S.W.2d 171; Saulsbury v. Atlas Supply Co., Tex.Civ.App., 144 S.W.2d 930. In these cases, however, the appellate courts themselves determined that venue facts necessary to retain venue where the suit was filed were not shown, and not only reversed the judgment of the lower court, but in effect itself rendered judgment ordering the case transferred to the proper forum. No such case is here presented. Our former judgment reversing the original action of the trial court on the plea of privilege, was not for lack of proof of venue facts, but for insufficient pleading of such facts. Sufficient venue facts to sustain the trial court's order were shown. In the instant case those pleadings were shown to have been amended to meet the only grounds on which our former reversal was based. The appellant did not, in that appeal, nor does he here, contend that either under the pleadings or the proof, he is entitled to have his plea sustained. If his contention be sustained, then it must follow that both this appeal, and the appeal from the judgment on the merits, be reversed and that both cases be tried over again from the beginning; notwithstanding the correctness of the trial court's determination that venue of the suit properly lies in Travis County.

If the trial court had taken the view here contended for by appellant and declined, so long as the appeal from the judgment on the merits was...