Stevens v. Polk County

• Decision Date: 08 December 1909
• Citation: 123 S.W. 618
• Parties: STEVENS v. POLK COUNTY.
• Court: Texas Court of Appeals

123 S.W. 618

STEVENS v. POLK COUNTY.

Court of Civil Appeals of Texas.

December 8, 1909.

Appeal from District Court, Throckmorton County; Cullen C. Higgins, Judge.

Action by Polk County against J. W. Stevens. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

D. A. Holman, for appellant. S. Webb and J. J. Wright, for appellee.

KEY, J.

This is an action in form of trespass to try title, but is really a boundary suit. The plaintiff, Polk county, alleged in its petition that it was the owner of three leagues of land in the counties of Baylor and Throckmorton, and that the defendant, J. W. Stevens, resided in Baylor county. The petition charged that the defendant had unlawfully entered upon and ejected the plaintiff from 340 acres of the land referred to, and gave the specific boundaries of the 340 acres, showing that it was located in the northwest corner of the three leagues first described in the plaintiff's petition. The first plea filed by the defendant was a plea of privilege to be sued in Baylor county, and the day following he filed an amendment to that plea, both of which were sworn to by him. In the original plea it was stated that the land in controversy lies entirely within Baylor county, and alleged that the defendant was not a resident of Throckmorton county where the suit was instituted at the time the suit was instituted, and at the time the plea of privilege was filed, "but was then and is now a resident of Baylor county, Tex." In the amendment to that plea the defendant alleged: "That the lands sued for in this case and described in plaintiff's petition lies entirely in Baylor county, Tex., and no part thereof lies in Throckmorton county, Tex., where the suit is brought, contrary to the statute in such cases made and provided (section 14, art. 1194, Sayles' Ann. Civ. St. 1897); that this defendant has in no wise waived, and does not waive, his right under the statute to have and demand suit for said land to be brought in Baylor county, where the whole of said land sued for lies, and he specially denies that any fact exists that would preclude him from the assertion and insistence of said right, all of which defendant is ready to verify, and now here tenders proof thereunder, and asks that the same be heard by the court. Wherefore this defendant prays judgment of the court whether this court will take other or further cognizance of this suit, and whether this defendant shall make further or other answer to plaintiff's amended petition and that same may be abated." The plaintiff filed a replication to the plea of privilege, which consisted, in substance, of a general demurrer and an allegation that the plaintiff had previously appeared and made agreements to continue the case, thereby waiving his right to be sued in the county of his residence, and a general denial of the allegations set up in the plea of privilege. The trial court heard and sustained the plea of privilege, and entered an order upon its minutes transferring the case to the district court of Baylor county. At a subsequent day, and upon written motion of the plaintiff, the court set that order aside, and sustained the plaintiff's exception to the defendant's plea of privilege, struck out and disregarded that plea, and the defendant excepted. The case then proceeded to trial, and resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

The first question presented for decision is the action of the trial court in setting aside the order it had previously made sustaining the defendant's plea of privilege and transferring the case to Baylor county, and then sustaining the exception to the plea of privilege, thereby compelling the defendant to litigate the case in Throckmorton county. The bill of exceptions shows that at the trial of the plea of privilege the plaintiff admitted that the land in controversy was wholly within Baylor county, and, in substance, that the defendant had not previously appeared, and that the plea of privilege was his first appearance in the case. We are of opinion that the trial court ruled correctly at first when it sustained the plea of privilege and transferred the case to Baylor county, and that it committed error when it made the other ruling, and set that order aside and struck out the plea of privliege. The Thirtieth Legislature (Laws 1907, p. 248, c. 133) amended the venue statute by adding thereto three additional articles, which read as follows:

"Art. 1194a. 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 such process therein, 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 none of the exceptions to exclusive venue in the county of one's residence mentioned in article 1194 or article 1585 of the Revised Statutes exist in said cause.

"Art. 1194b. Issuing process for witnesses and taking depositions shall not constitute a waiver of such plea of privilege, but depositions taken in such case may be read in evidence in any subsequent suit between the same parties concerning the same subject-matter in like manner as if taken in such subsequent suit, and if such 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 cost 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. 1194c. That whenever a plea of privilege to...