San Antonio Drug Co. v. Red Cross Pharmacy

• Decision Date: 28 November 1917
• Docket Number: (No. 1253.)
• Parties: SAN ANTONIO DRUG CO. v. RED CROSS PHARMACY et al.
• Court: Texas Court of Appeals

Page 324

199 S.W. 324

SAN ANTONIO DRUG CO. v. RED CROSS PHARMACY et al.

(No. 1253.)

Court of Civil Appeals of Texas. Amarillo.

November 28, 1917.

Appeal from Lubbock County Court; J. H. Moore, Judge.

Action by the San Antonio Drug Company against the Red Cross Pharmacy and others. From a judgment of dismissal, the plaintiff appeals. Reversed and remanded, with directions.

Bean & Klett, of Lubbock, for appellant. R. A. Sowder, of Lubbock, for appellees.

HUFF, C. J.

The San Antonio Drug Company on the 15th day of February, 1915, filed in the county court for civil cases in and for Bexar county its petition in which it declared that appellee, the Red Cross Pharmacy, a copartnership, was indebted to appellant for goods, wares, and merchandise sold and delivered to appellees between the 25th day of June, A. D. 1913, and the 26th day of January, 1914, in consideration of which appellees promised to pay the several sums of money charged therefor, "amounting in all to the sum of $229.31." It appears from the record that on the 15th day of April, 1915, in the above court an order was entered reciting that the attorneys representing the respective parties in this case in open court stated:

"That it had been agreed between them that the venue of this case is not in Bexar county, but in Lubbock county, Tex., and therefore prayed the court to transfer this case from this court to the county court of Lubbock county, and it appearing to the court that the facts are as stated, it is therefore ordered, adjudged, and decreed by the court that this case be, and the same is, hereby transferred from this court to the county court of Lubbock county, and the clerk of this court is hereby instructed and directed to transfer this case from this court to that in the same manner and form as if plea of privilege had been filed and sustained by the court."

On July 13, 1917, the appellee filed a plea in the county court of Lubbock county to the jurisdiction to the effect that the cause of action was upon an account of $193.61, made up of a series of items, and the total amount of $229.31 sued for was made up in part by an item of $35.70 interest, and therefore the jurisdictional amount was less than $200, and that the county court for civil cases of Bexar county did not have jurisdiction over the cause or authorized to take any action whatever; that plaintiff alleged the amount in excess of $200, well knowing that the allegation was false and fraudulent, and did so for the purpose of attempting to give the court jurisdiction. It will be noted this plea did not allege that the county court of Lubbock county was without jurisdiction. The appellant answered this plea: (1) That appellees waived any right to question the jurisdiction of the county court of either county, in that they appeared without raising any question of jurisdiction of said court, and voluntarily invoked the jurisdiction of said court to pass on a plea of privilege to be sued in Lubbock county, having never filed any plea to the jurisdiction of either court for more than three years after the plea of privilege was sustained, thereby violating the rule requiring due order of pleadings; (2) that appellees submitted themselves to the jurisdiction of the county court of Bexar county, without raising the question of fraud, and there voluntarily invoked the jurisdiction of that court and prayed by their plea of privilege, to be sued in Lubbock county, and that they be granted a transfer to that county, which the court ordered, as prayed for, and that appellees did not raise any question of jurisdiction of that court until about three years after suit was filed in Lubbock county, and waited until after the cause of action was barred, thereby waiving the right to raise the question of jurisdiction. Upon a trial of the issue as to jurisdiction it was agreed by the parties:

"That at the time said suit was transferred by plea of privilege from the county court of Bexar county to the county court of Lubbock county, and the time said suit was filed in the county court of Lubbock county, that the county court of said Lubbock county, had and still has concurrent jurisdiction with the justice court."

The parties further agreed that appellant's counsel called upon the attorney for appellees not later than the second term of the county court after the case was filed therein for appellees' answer, which appellees' attorney agreed to prepare and file, and that he immediately deposited with the papers in said case an answer consisting of a general demurrer, general denial, and special plea to the effect that defendants had paid plaintiff all they were indebted; that such answer remained among the papers of the cause for at least two or three terms of court. The papers were then in the possession of counsel for plaintiff, and at and before the April term, 1917, counsel for defendant phoned one of plaintiff's counsel that he was going to withdraw his answer. This was objected to by plaintiff, who suggested to him if the answer was not in the form desired he could amend. Defendant's counsel then called on plaintiff's counsel and requested to see the papers which were handed him. Thereupon he looked through the papers, found his answer, which was not indorsed "Filed" by the clerk, and remarked that he "guessed he would withdraw the answer whether counsel for plaintiff was willing or not." The plea to the jurisdiction was filed at the July term, 1917. The answer withdrawn had never been in court nor in the custody of the clerk, being continuously in either one or the other of the attorney's offices. The deposition of the cashier of appellant, upon whose testimony the appellees appear to have founded their plea to the jurisdiction as to the amount in controversy, had been filed in the clerk's office since 1915. The record shows no formal plea of privilege or any other pleading by defendant except the one to the jurisdiction. The evidence was sufficient to authorize a finding by the trial court that the items of the account sued upon amounted only to $193.61, with interest thereon, which totaled $229.31. The appellant took a bill of exception to the plea of jurisdiction and the evidence introduced thereon for the reason that the plea had not been filed in due order; that appellees had waived their right to attack the jurisdiction of either court. The trial court sustained the plea to the jurisdiction and dismissed the case.

Assignments 1, 2, 3, and 4 urge that the court was in error because the plea to the jurisdiction was not filed in due order of pleading; that the plea was waived by invoking the jurisdiction of the county court for civil cases on the plea of privilege; that appellees were estopped from making an attack on the jurisdiction; and that the county court of Lubbock county had concurrent jurisdiction with the justice court. It is insisted by appellees that they did not file a plea of privilege to be sued in Lubbock county. The order of the San Antonio court perhaps disclosed there was no formal plea, but it does appear therefrom that the appellees, by their attorney, appeared and agreed with appellants' attorneys that the venue of the case was in Lubbock county, "and therefore prayed the court to transfer this case from this court to the county court of Lubbock county"; that this agreement and prayer were sufficient to induce the court to investigate the facts which he found were as stated, and by means of which the court was induced to transfer the case and to order the clerk thereof to transfer the papers therein "in the same manner and form as if a plea of privilege had been filed and sustained by the court." It is manifest the defendants appeared in that court for the purpose of urging their privilege to be sued in Lubbock county. While the pleadings and action thereon were informal, yet they amounted to a formal plea by obtaining the same result. They procured the benefit of the statute authorizing a change of venue under a formal plea and procured the order of the court so reciting. The order showing it was entered under the statute which authorized a transfer after a plea of privilege had been sustained, and negatives that the venue was changed under the statute authorizing the change by agreement. Having accepted the action of the court...