Shell Petroleum Corporation v. Grays

• Decision Date: 23 June 1933
• Docket Number: No. 1718-6425.,1718-6425.
• Citation: 62 S.W.2d 113
• Parties: SHELL PETROLEUM CORPORATION et al. v. GRAYS et al.
• Court: Texas Supreme Court

62 S.W.2d 113

SHELL PETROLEUM CORPORATION et al. v. GRAYS et al.

No. 1718-6425.

Commission of Appeals of Texas, Section A.

June 23, 1933.

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

Suit by Mary Jane Grays and another against the Tidal Oil Company, the Shell Petroleum Corporation, and others. From an order overruling their respective pleas of privilege and an order appointing a receiver, the oil companies appeal to the Court of Civil Appeals [54 S.W.(2d) 1043], which certifies questions.

Questions answered.

Thompson, Mitchell, Thompson & Young, W. K. Koerner, and P. G. McElwee, all of St. Louis, Mo., R. H. Whilden, Hiner & Pannill, and Allen & Morton, all of Fort Worth, and Y. P. Broome, of Tulsa, Okl., for appellants.

Carlton J. Smith and Tom P. Scott, both of Waco, for appellees.

CRITZ, Judge.

This case is before us on certified questions from the Court of Civil Appeals at Waco. A reading of the certificate in conjunction with the record accompanying it discloses that originally Mary Jane Grays and Josie Nichols filed this suit in the district court of McLennan county, Tex., to recover an alleged three ninety-eighths interest in 140 acres of land in Gregg county, Tex., for an accounting for oil removed from such land; for partition, and for a receiver. The dominant purposes of the suit are to recover the title and possession of land, and to recover for oil removed therefrom, as we will later demonstrate.

The two above-named plaintiffs reside in McLennan county, Tex. There are a great number of defendants. Only two of such defendants, Alice Hays Jefferson and Arma Lee Greer, reside in McLennan county. It is alleged that the plaintiff, Mary Jane Grays owns an undivided one ninety-eighth interest in this land and that the plaintiff Josie Nichols and the defendant Alice Hays Jefferson each own an undivided one forty-ninth interest. It is alleged that the defendant Arma Lee Greer is claiming some right, title, or interest in the land, the exact nature of which is unknown to the plaintiff, but that such claim is inferior to the claims and titles of the plaintiffs. The interest of the defendant Alice Hays Jefferson is identical with plaintiffs, and, as shown by the facts, the defendant Greer has no interest in the land at all.

It appears that the Shell Petroleum Corporation, and Tidal Oil Company, both corporations, and neither of whom reside in Gregg county, Tex., or in McLennan county, Tex., filed their respective pleas of venue or privilege, to be sued in Gregg county, Tex., the county in which the land is located. Controverting affidavits were filed by the plaintiffs, and subject to the pleas of privilege or venue the two oil companies filed general exceptions and general denials to the application for the appointment of a receiver.

There was a hearing on the pleas of venue or privilege of the two oil companies to be sued in Gregg county, Tex., where the land is located, and without passing on such pleas, but subject thereto, and with the express understanding that no rights would be waived by doing so, the district court took up the matter of the application for the appointment of a receiver. Several days later the district court entered an order overruling the pleas of venue or privilege, and then proceeded to enter an order appointing a receiver for the entire tract of land, surface, and minerals with authority generally to operate the same as an oil producing property.

The two above-named oil companies prosecuted separate appeals to the Court of Civil Appeals at Waco, both from the order overruling the pleas of venue or privilege, and the order appointing the receiver. The two appeals were consolidated in the Court of Civil Appeals, and this certificate is in the consolidated appeal. We do not reproduce the certificate; it is sufficient to say that it certifies questions which call for a decision of the law questions we shall decide.

At the threshold of this case we are met with a motion filed by appellees to dismiss this certificate in so far as it pertains to the appeals of the two oil company defendants from the order of the district court overruling their pleas of privilege or venue to be sued in Gregg county, Tex. As ground for such motion appellees assert that the statutes of this state make no provision for appeals from interlocutory orders overruling mere pleas of venue. In other words it is asserted by the motion to dismiss that it is only where the appeal is from an interlocutory order overruling a personal plea of privilege "to be sued in the county of one's residence" that an appeal is provided for. In connection with the above appellees assert that a mere plea of venue to be sued in one of the counties allowed by the several exceptions to the general rule provided by article 1995, R. C. S. 1925, or other statutes, is still a plea in abatement. In support of such contention appellees cite the case of Prothro v. Smith (Tex. Civ. App.) 57 S.W.(2d) 921. This authority undoubtedly sustains appellees' position.

We overrule the motion to dismiss because we are not in accord with the holding in the case above cited. In this connection we do not express an opinion as to whether we would sustain such motion if we did agree with the holding in the Prothro Case, supra, A decision of that matter would involve certain jurisdictional questions which we do not here pass on.

We disagree with the holding in Prothro v. Smith, supra, because we think that when the pertinent statutes are properly construed as a whole they are intended to cover all pleas of privilege or venue to be sued in a county where venue is provided by the various provisions of article 1995, and article 2390, R. C. S., or any other county of venue provided by law.

Before further discussing the pertinent statutes directly involved in this question, we deem it expedient to quote the same. They are articles 2007, 2008, 2019, and 2020, R. C. S. 1925. Such statutes are as follows:

"Art. 2007. A plea of privilege to be sued in the county of one's residence shall be sufficient if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that `no exception to exclusive venue in the county of one's residence provided by law exists in said cause'; and such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue. If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.

"Art. 2008. 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.

"Art. 2019. If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff.

"Art. 2020. When a plea of privilege is sustained, the court shall order the venue to be changed to the proper court of the county having jurisdiction of the parties and the cause. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed."

Prior to 1907, when the first act relating to pleas of privilege or venue was enacted by the Legislature, such pleas were very cumbersome and complicated affairs. Among other things, the rule then in force required the plea to negative expressly, in so many words, all exceptions provided by the various venue statutes. Also prior to 1907, a plea of privilege or venue was purely a plea in abatement, and when sustained there was no authority for removal to the proper court in a county of statutory venue, but the cause was completely dismissed, and the plaintiff was compelled to institute a new suit in the proper county. As a result of this condition it often happened that after months and even years of litigation cases would be dismissed for lack of venue in the county where they were instituted. In this connection it also often happened that the cause when dismissed was barred by limitation. It was these evils that the Legislature undoubtedly sought to correct by the 1907 plea of privilege Act.

When we examine the 1907 Act which is chapter 133, p. 248, General Laws 30th Legislature, we find that by its terms it certainly covered all pleas of venue, and was not restricted to mere pleas of personal privilege to be sued in the county of one's residence. In this connection it is true that article 1194a of the 1907 Act did begin with the words, "A plea of privilege to be sued in the county of one's...