Sneed v. Box, 14463.

• Decision Date: 11 December 1942
• Docket Number: No. 14463.,14463.
• Citation: 166 S.W.2d 951
• Parties: SNEED et al. v. BOX.
• Court: Texas Court of Appeals

166 S.W.2d 951

SNEED et al. v. BOX.

No. 14463.

Court of Civil Appeals of Texas. Fort Worth.

December 11, 1942.

Error to Jack County Court; H. C. McClure, Judge.

Action by J. M. Box against J. B. Sneed and others for the conversion of certain machinery and equipment. Judgment for plaintiff, and defendants bring error.

Reversed and remanded with instructions.

W. H. Penix, of Mineral Wells, for plaintiffs in error.

John W. Moore, of Jacksboro, for defendant in error.

SPEER, Justice.

This is an appeal by writ of error from a judgment rendered in the County Court of Jack County, Texas.

The judgment from which relief is sought shows that neither of the plaintiffs in error was present at the time the case was tried.

J. M. Box, by petition filed September 24, 1940, sued J. B. Sneed, J. B. Sneed and Company, a corporation, and Oxsheer Smith, in County Court of Jack County, alleging that the residence of J. B. Sneed and the office of J. B. Sneed and Company were in Dallas County, Texas, and that Smith resided in Milam County; that the named defendants were partners in the business of operating for oil in Jack County; that at the instance of a named agent of defendants, plaintiff loaned them certain described machinery and equipment; that request had been made for the return of said property but was refused, and that defendants had converted all of it to their own use and benefit. Value of the property was alleged to be $598; judgment was sought for that amount against defendants, jointly and severally.

Process was duly served on all defendants, commanding them to appear and answer on October 7, 1940. Defendant Smith filed a plea of privilege seeking to change the venue from Jack County to his home county, Milam. Plaintiff Box filed a controverting plea thereto, and the court entered a notation thereon as follows: "The hearing of said plea is set for October 19, 1940, at 10 A.M. County Court Room, Jack County, Texas." Notice was issued by the county clerk to Smith, containing a copy of the controverting affidavit, which notice stated that hearing on the plea of privilege was set by the court for October 24, 1940, at 10 a.m. in the county court room of Jack County, Texas. This notice was served on Smith's attorney on October 9, 1940.

Record shows a judgment overruling the plea of privilege, beginning with these words: "This the 19th day of October, 1940 * * * and after the notation of the time for a hearing on the controverting plea filed herein by J. M. Box, and service of notice by process and a copy of said plea", etc. The order recites that plaintiff appeared but that Smith came not, and that after hearing the pleadings, evidence and argument, court concluded the plea of privilege should be overruled. While the order bore the date above shown, for some unexplained reason the record shows it was "filed" on December 3, 1941, the same date on which judgment was filed in the case on the merits.

At the time Smith filed his plea of privilege, he also filed, subject thereto, his answer. Neither of the other defendants ever filed any pleadings prior or subsequent to the entry of the above order.

More than a year later, on December 2, 1941, judgment was entered for plaintiff Box for the amount sued for against all defendants jointly and severally. The judgment recites that Smith had answered but failed to appear at the trial and that the other two defendants wholly made default.

On May 26, 1942, Oxsheer Smith, J. B. Sneed and the corporation, J. B. Sneed and Company, as plaintiffs in error, to whom, for convenience, we will refer as appellants, filed their petition and bond for writ of error to the judgment entered on December 2, 1941, and had service made thereof on said J. M. Box, to whom we shall refer as appellee. The petition asserts that appellants were not present and did not participate at the trial when the judgment was rendered, and knew nothing of its entry until April 22, 1942, and therefore had no opportunity to move to set it aside during the term at which it was rendered.

Both in the petition for writ and in their briefs, by pertinent points, appellants assert that, for many reasons, the judgment of October 19, 1940, overruling the plea of privilege and the judgment on the merits, of December 2, 1941, are void. Appellee has filed no briefs, hence we do not have the benefit of his views on the points raised.

Points Nos. 10 and 11 challenge the validity of the judgment rendered against appellants on December 2, 1941, purportedly disposing of the merits of the case upon the ground that the plea of privilege theretofore filed by appellant Smith had not been disposed of by a valid judgment. It is now the settled rule of law in this state that a party is entitled to have the question of venue determined before being compelled to try the case on its merits. He could agree, however, to having both tried at the same time. He could also waive his claim of venue, but is required to do neither. A party claiming his privilege to be sued in the county of his residence is entitled to have the issue tried and a final judgment rendered thereon before trial on the merits. Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233.

It follows that if the order entered on October 19, 1940, overruling Smith's...