Southport Petroleum Co. v. Carter

• Citation: 165 S.W.2d 85
• Decision Date: 21 October 1942
• Docket Number: No. 1917-7960.,1917-7960.
• Parties: SOUTHPORT PETROLEUM CO. et al. v. CARTER et al.
• Court: Supreme Court of Texas

165 S.W.2d 85

SOUTHPORT PETROLEUM CO. et al. v. CARTER et al.

No. 1917-7960.

Commission of Appeals of Texas, Section B.

October 21, 1942.

Certified Question from Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Martin G. Carter and another against the Southport Petroleum Company

and another for damages. From a judgment sustaining an exception to its plea of privilege to be sued in the county of its domicile and dismissing the plea, named defendant appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered.

W. E. Tomlinson, Jr., of Dallas, and Smith, Smith & Boyd, of Beaumont, for Petroleum Co.

Gaston H. Wilder, Jr., and Geo. E. Holland, both of Beaumont, for Carter et al.

TAYLOR, Commissioner.

This case is before us on certified questions. The following are the essential facts of the certificate: Martin G. Carter et al. filed a suit for damages against two defendants, M. M. Travis, Inc., and Southport Petroleum Company. Both defendants in due course filed separate pleas of privilege, each to be sued in the county (Gregg) of its domicile. Motion to quash the citation served on the Petroleum Company was duly filed and sustained on June 19, 1941, the judgment on the motion reciting that "such citation be quashed at plaintiff's cost." The following day the Petroleum Company filed its plea of privilege to be sued in the county of its domicile. The trial court sustained plaintiff's exception to the plea and dismissed it. The hearing on the plea of the Petroleum Company's codefendant was thereupon postponed by agreement between the codefendant and plaintiff, and, so far as this record shows, the codefendant's plea is still pending on the trial court's docket.

The Court of Civil Appeals, upon original hearing, dismissed the Petroleum Company's appeal on the ground that it was premature, holding that when two or more defendants file separate pleas of privilege such pleas present but one ultimate issue, that of venue, and that for this reason there can be no final judgment in the trial court on such issue until all pleas of privilege are disposed of by that court. Upon rehearing Associate Justice Combs filed his dissent to the original opinion. Both the majority and the dissenting opinion accompany the certificate, which certifies the following questions:

"I. Is the majority of this court correct in holding that when two or more defendants file pleas of privilege, such pleas, regardless of the number filed, present but one ultimate issue—that of venue, and hence there can be no final judgment or order, sufficient to support an appeal until all pleas of privilege are disposed of?

"II. In the case at bar, do we have jurisdiction of appellant's appeal from the judgment of the lower court dismissing its plea of privilege, on the affirmative showing in the transcript that the plea of privilege of appellant's codefendant, M. M. Travis, Inc., was postponed without prejudice until September 5, 1941, and there being no showing that the plea of privilege of M. M. Travis, Inc. has ever been adjudicated by the lower court?

"III. Where two or more defendants file separate pleas of privilege, does the Court of Civil Appeals have jurisdiction of the appeal of one of the defendants from the judgment of the lower court overruling his plea of privilege, on the affirmative showing in the transcript that the pleas of privilege of his codefendants remain on the docket of the lower court undisposed of?"

The holding of the original opinion has already been stated. The holding of the minority opinion, without stating what the answer to each question separately should be, is to the effect that the Petroleum Company's appeal was properly before the Court for consideration upon its merits. We are in accord with that holding and that the...