Schuchmacher Co. v. Dolive

• Decision Date: 25 April 1923
• Docket Number: (No. 403-3753.)
• Parties: SCHUCHMACHER CO., Inc., v. DOLIVE.
• Court: Texas Supreme Court

Page 673

250 S.W. 673

SCHUCHMACHER CO., Inc., v. DOLIVE.

(No. 403-3753.)

Commission of Appeals of Texas, Section B.

April 25, 1923.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by the Schuchmacher Company, Inc., against J. M. Dolive. From an order transferring the cause on defendant's motion, plaintiff appealed to the Court of Civil Appeals, which certified questions to the Supreme Court. Question answered as recommended by the Commission of Appeals.

Wolters, Storey, Blanchard & Battaile, of Houston, for appellant.

POWELL, J.

This case is before the Supreme Court upon the following certificate from the Honorable Court of Civil Appeals of the First District:

"This suit was instituted in the county court at law No. 2 of Harris county, Tex., by the Schuchmacher Company, Inc., against J. M. Dolive, a resident of San Jacinto county, Tex., to recover $349.27 as the purchase price of certain goods, wares, and merchandise purchased by appellee from appellant.

"The defendant, Dolive, was served with citation on the 27th day of December, 1920, commanding him to appear and answer on the first Monday in February, 1921, same being the 7th day of said month and the first day of the February term of said court for 1921.

"On the 22d day of January, 1920, while the December term of said court was still in session, the defendant, Dolive, filed his plea of privilege in manner and form as provided by article 1903 of the Revised Civil Statutes as amended by the Acts of the 1917 Legislature. The attention of the court was not, during the December term, called to the fact that said plea of privilege had been filed and no order with reference thereto was made or entered during said term.

"On the 9th day of February, 1921, during the February term of said court, the plaintiff, the Schuchmacher Company, filed the following motion:

"`Comes now the Schuchmacher Company, Inc., plaintiff in the above numbered and styled cause, and with respect to the plea of privilege filed herein would show to the court:

"`(1) That the above styled case was an appearance case for the February term of this court; that the defendant on the 22d day of January, A. D. 1921, during the December term of this court, filed a plea of privilege to be sued in the county of his residence, which was alleged to be San Jacinto county; that said plea of privilege was permitted to lie on file in said cause during the remainder of said January term of court without being called to the attention of the court, and without any action or request for action thereon, and without any agreement for continuance without prejudice, or any order of the court to that effect; that no order of the court was entered declaring that such plea of privilege was not passed by agreement, nor was it passed because the business of the court was such that said plea of privilege could not be disposed of during the December term of said court.

"`Wherefore, by reason of the facts hereinbefore alleged, plaintiff moves the court that such plea of privilege be denied and stricken out.'

"The plea of privilege was heard on the 24th day of March, during the February term of court, without any controverting affidavit having been filed, and the same was sustained and an order was entered transferring the cause to San Jacinto county for trial on its merits.

"The Schuchmacher Company has appealed to this court...