Scruggs v. Gribble, 3623.

• Decision Date: 03 June 1931
• Docket Number: No. 3623.,3623.
• Citation: 41 S.W.2d 643
• Parties: SCRUGGS v. GRIBBLE.
• Court: Texas Court of Appeals

41 S.W.2d 643

SCRUGGS v. GRIBBLE.

No. 3623.

Court of Civil appeals of Texas. Amarillo.

June 3, 1931.

Rehearing Denied September 9, 1931.

Appeal from District Court, Collingsworth County; A. J. Fires, Judge.

Suit by L. E. Gribble against Gross R. Scruggs. From the judgment, the defendant appeals.

Affirmed.

R. H. Templeton, of Wellington, and H. A. Bateman and Burgess, Burgess, Chrestman & Brundidge, all of Dallas, for appellant.

Jas. C. Mahan and L. E. Gribble, both of Wellington, for appellee.

RANDOLPH, J.

This is the second appeal in this case, and the opinion on the former appeal will be found in (Civ. App.) 17 S.W.(2d) 153. We refer to such opinion for a substantial statement of the case on this hearing, with such additional statements as are necessary to be made to sustain any ruling herein.

On this hearing the sole question for our consideration is: Was the judgment of the county court of Dallas county herein attacked, void or only voidable?

It is agreed by counsel in the argument that the trial court's judgment should be affirmed in the case at bar, if the judgment of the Dallas county court at law is void, but that if said judgment was only voidable, then that the district court should have dismissed the proceedings before it and the case herein should be reversed.

The proceedings in the Dallas county court at law, in so far as they are of importance in the solution of the questions involving the validity of the judgment therein rendered, are as follows: The defendant in that suit, the plaintiff in this, filed his plea of privilege to be sued in Collingsworth county, the county of his residence. The plaintiff, in answer thereto, filed his controverting affidavit. This controverting affidavit was in due form and the question arises only as to the service of same upon the defendant by the sheriff of Collingsworth county.

It will be understood that the suit in which the judgment was rendered in the county court at law in Dallas county was instituted by Gross R. Scruggs against Ed Julian, L. E. Gribble, and B. H. Hooker, and further that the judgment in the Dallas county court at law was a judgment by default.

The controverting affidavit and notation of the setting thereof by the Dallas county court are set out in full in the former opinion and will not be again copied.

Article 2008, Texas Civil Statutes 1925, provides as follows: "Upon the filing of such controverting plea, the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege. Such hearing, unless the parties agree upon the date, shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon. Either party may appeal from the judgment sustaining or over-ruling the plea of privilege, and if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal."

In our former opinion we held that the sheriff's return on the service of the controverting affidavit was invalid because of the failure of the sheriff to deliver to the defendant Gribble a copy of the plaintiff's controverting affidavit to the plea of privilege filed by defendant Gribble. The requirement of the above article 2008 that a copy of the controverting affidavit to the plea of privilege and of the court's notation thereon shall be served on each defendant in the pending case is mandatory, and the failure to so serve each defendant renders the court trying the case without jurisdiction to enter any other order or judgment except to transfer the case to the proper court.

In the case at bar the failure to serve a copy of the plaintiff's controverting affidavit to the defendant Gribble's plea of privilege came about by reason of an error on the part of the clerk of the Dallas court in attaching, to the process to be served on Gribble, a copy of the plaintiff's controverting affidavit to the defendant Julian's plea of privilege instead of the controverting affidavit to the defendant Gribble's plea. This was fully discussed in our former opinion and authorities cited to sustain our holding therein, and we therefore affirm such ruling.

The appellant contends that the judgment upon the pleas of privilege entered by the county court of Dallas county recites due and legal service of notice of the controverting affidavits upon all of the defendants—that the judgment is in all respects valid on its face and cannot be attacked collaterally. The copy of the Dallas court's judgment appears in the record at this time, and the recital of service on the defendants is as follows: "On this the 22nd day of January, A. D. 1927, at a regular term of this court, came on to be heard the respective...