Smith v. Citizens' Nat. Bank

• Decision Date: 22 November 1922
• Docket Number: (No. 2039.)
• Citation: 246 S.W. 407
• Parties: SMITH v. CITIZENS' NAT. BANK OF LUBBOCK.
• Court: Texas Court of Appeals

246 S.W. 407

SMITH v. CITIZENS' NAT. BANK OF LUBBOCK.

(No. 2039.)

Court of Civil Appeals of Texas. Amarillo.

November 22, 1922.

Rehearing Denied January 3, 1923.

Appeal from District Court, Lubbock County; C. D. Russel, Special Judge.

Action by the Citizens' National Bank of Lubbock against H. B. Smith, Jr. From a judgment for plaintiff, defendant appeals. Affirmed.

Kirby, King & Overshimer, of Abilene, for appellant.

Bean & Klett, of Lubbock, for appellee.

HUFF, C. J.

The appellee bank sued Smith on a promissory note for the principal sum of $900, payable in monthly installments of $100 each, bearing date December 13, 1921, but it is alleged that the date of the note was written by mistake and that its true date was for the year 1920; that the note was secured by a mortgage on a Cadillac touring car of the market value of $600. Judgment was asked for the debt, interest, attorney's fees and for foreclosure of the lien. Upon affidavit and bond for sequestration a writ of sequestration was issued and levied on the car. Smith replevied by executing a replevy bond under the statutes, with H. B. Smith and H. A. Fry as sureties. The appellant filed his plea of privilege to be sued in Taylor county, his alleged place of residence. This plea was controverted by a plea, properly sworn to by the plaintiff. The appellant excepted to the controverting plea. The plea of privilege was overruled, and judgment entered for the debt, interest, attorney's fees, and with foreclosure of the lien.

The first proposition is to the action of the court in refusing to strike out the controverting plea upon appellant's exception or motion. The appellant, as alleged by both parties, resided in Taylor county. The plea of privilege simply alleged that appellant resided in Taylor county, and made the other necessary allegations now required by the statute in pleading the privilege to be sued in the county of his residence. The original suit was filed in the district court of Lubbock county, Tex., and alleged that the note sued on provided for its payment at Lubbock, which it was alleged, was situated in Lubbock county, Tex. The plea of privilege was filed December 1, 1921. The district court convened December 12, 1921. Appearance day was December 13, 1921. The record shows by the oral testimony of an attorney that the appearance docket was called on that day and the instant case was called at that time. There appears to have been no order entered by the court. The appellee filed its controverting plea December 17, 1921, setting up the execution of the note for $900, payable in monthly installments, and it is alleged that if default was made in the payment of any installment the entire debt would become immediately due and that it further provided that it was payable in Lubbock, Tex., alleging that Lubbock is situated in Lubbock county, Tex. It also set up default in the payment of several monthly payments, declaring on the entire note for the amount thereof then due — $800; that $100 or one monthly payment only, had been made. The appellant excepted to the controverting plea because (1) he was served on the 2d day of June, 1921, to appear December 12, 1921, and that he filed his plea of privilege December 1, 1921; (2) that appearance day was the 13th of December, 1921, and that appellee did not file any controverting plea on that day, that the case was called on appearance day and, as appellant had filed his plea of privilege and as no controverting plea had been filed, the plea of privilege was established, and the district court no longer had jurisdiction, but the same was with the district court of Taylor county, and that the court could only order a change of venue. The trial court overruled the exception or motion to strike out the controverting plea.

It is true the courts, in effect, hold where a plea of privilege is filed, in the absence of a controverting plea, the trial court can make but one order and that is the one of removal. The statute does not specifically provide when the controverting plea should be filed, nor does it provide the filing of the plea of privilege shall instantly operate as a removal. Necessarily there would be some interval between the filing of the plea of privilege and the controverting plea. The statute and the procedure thereunder should receive a reasonable construction so as to effect its purpose, and also time sufficient to give the opposite party a reasonable time to controvert the plea. This necessarily would be in the discretion of the trial court and if no abuse is shown none will be presumed.

Under article 1934 et seq., R. C. S., appearance day is set apart for the purpose of calling the appearance docket for orders. If the defendant had not answered default may be taken. The filing of the plea of privilege was an appearance for that purpose and prevented a default. Article 1943 requires suits to be called in their order, when final judgment has not been taken by default and the trial be had in the order in which the case stands on the docket. Article 1947 provides when a case is called for trial the issues of law arising on the pleadings, plea in abatement, etc., shall be determined. The plaintiff in this case would not have been authorized to take a default judgment because the plea of privilege had been filed. The cause then stood for call in its regular order, and if there was a controverting plea filed before the call we see no just reason why this would not have been in time. There is nothing to show it was called out of its order or that the controverting plea was filed after its call, or anything to show the court abused his discretion in then hearing the question raised. The exception or motion, we think, was properly overruled.

The second and third propositions assert error in not first trying the issues of the plea of privilege before trying the case on the merits, and in forcing appellant to a trial on the merits over his objection, etc. On the 6th day of February, 1922, the case was reached. It appears from a bill of exceptions that the appellant was notified to respond to the controverting plea and that he appeared for that purpose. After the court overruled the exceptions to the controverting plea he sought to have the trial court first dispose of the plea, the trial court stating it appeared upon hearing the exception that the issues would be the same in the plea and on the merits, and he would hear both together, and that appellant presented no ground or reason for a postponement of the trial. The court, therefore, proceeded with the trial. The appellant also excepted because the trial court first refused to pass upon his plea of privilege after he had heard all of the appellants' evidence. The note was payable at Lubbock, as alleged. Clearly the suit was brought in the proper county, as the note provided for its payment in that county and the plea of privilege was properly overruled under subdivision 5, art. 1830, Revised Civil Statutes. It seems to be the contention of appellant, as he excepted and gave notice of appeal, a trial on the merits should await the appeal from the interlocutory order. There was no plea that the note was not executed by the appellant, or that it was not executed by him made payable at Lubbock; unless there was a plea to that effect, and evidence supporting it, the trial court could do nothing but retain jurisdiction of the cause and render judgment for the amount due thereon. Of course, if appellant could have induced the court to defer action on the merits until he could have procured a hearing on an appeal from the judgment on his plea he would secure a delay. A failure to secure a delay ought not to cause a reversal, where it is clearly shown the proper judgment has been rendered both on the...