Thompson v. Pure Oil Co., 5154.
| Decision Date | 16 December 1937 |
| Docket Number | No. 5154.,5154. |
| Citation | 113 S.W.2d 662 |
| Parties | THOMPSON et al. v. PURE OIL CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Smith County; Walter G. Russell, Judge.
Suit by T. J. Thompson and others against the Pure Oil Company and others for the partition of land. Judgment sustaining a plea of privilege filed by the named defendant, and the plaintiffs appeal.
Reversed and remanded.
Pollard & Lawrence, Beauchamp & Richardson, and C. Worth Wood, all of Tyler, for appellants.
Vinson, Elkins, Weems & Francis and C. E. Bryson, all of Houston, and Wynne & Wynne, of Wills Point, for appellees.
This appeal by appellants, plaintiffs below, is from an order of the Seventh judicial district court of Smith county, sustaining without a hearing on the merits of a plea of privilege filed by one of the defendants, the Pure Oil Company, and transferring the case to the district court of Van Zandt county.
The case was filed in the "Special District Court of Smith County," August 10, 1934, by T. J. Thompson, Mrs. N. E. George, a feme sole, J. E. Thompson, Jennie White, joined by her husband, W. H. White, and H. R. Thompson, plaintiffs, against I. W. Thompson, J. T. Thompson, and the Pure Oil Company, a corporation, defendants in the trial court. The case was styled J. T. Thompson et al. v. The Pure Oil Company et al., and numbered 5371-A on the docket of said "Special District Court of Smith County." The suit as shown by plaintiffs' petition was one for partition of land located in Van Zandt county, and alleges that two of defendants, I. W. Thompson and J. E. Thompson, reside in Smith county, the county in which the suit is filed.
On November 15, 1934, said "Special District Court of Smith County" ceased to exist by express provisions of the act creating it, and all cases pending in said court, including the case here involved, were in accordance with law transferred to the "7th Judicial District Court of Smith County," Acts 1932, 42d Leg., 3d Called Sess., p. 116, chap. 47, Vernon's Ann.Civ.St. art. 199, subd. 7. Said special district court of Smith county will hereafter be referred to as the (first) special district court of Smith county for convenience in distinguishing it from a subsequently created special district court of Smith county, Acts 1935, 44th Leg., p. 7, chap. 3, Vernon's Ann.Civ.St. art. 199, subd. 7, effective January 21, 1935, and which last special district court of Smith county will hereafter be referred to as the (second) special district court of Smith county. The act last above cited creating the (second) special district court of Smith county provides that the "District Clerk of Smith County" shall be the clerk of the Seventh judicial district court and of said (second) special district court of Smith county, that is, one and the same person shall be the clerk of both of said courts in Smith county.
At the time the case here involved was transferred to the Seventh judicial district court of Smith county, citation had not been issued and served on defendant Pure Oil Company and it had made no appearance in the case. On April 29, 1935, citation was issued out of the (second) special district court of Smith county and served upon the Pure Oil Company commanding it to appear before said special district court of Smith county, on May 6, 1935, and answer in cause No. 5371-A styled T. J. Thompson et al. v. The Pure Oil Company et al. This citation was issued and signed by the clerk and under the seal of said special district court of Smith county. In response to this citation, the Pure Oil Company prepared and mailed to the district clerk of Smith county a plea of privilege praying that the case be transferred to Van Zandt county, the county in which the land sought to be partitioned is located. The plea of privilege was captioned "In the Special District Court of Smith County, Texas," and styled "T. J. Thompson et al. v. The Pure Oil Company et al., No. 5371-A." The clerk marked the plea of privilege "Filed May 6, 1935, Clark Sparks, Clerk of the Special District Court, Smith County, Texas, by Nina Richardson, Deputy." At the time this citation was issued, served, and returned, and at the time this plea of privilege was filed, and at all times since November 15, 1934, when it was transferred from the (first) special district court of Smith county to the Seventh judicial district court of Smith county, the case has continuously been pending in the Seventh judicial district court of Smith county, and has never at any time been pending in the (second) special district court of Smith county.
No further action appears to have been taken in the case in either of said courts until October 11, 1935, when the plaintiffs caused to be issued out of the Seventh judicial district court of Smith county a citation directed to the sheriff of Tarrant county (domicile of the Pure Oil Company) commanding him to summon the defendant Pure Oil Company to appear before said Seventh judicial district court of Smith county on November 4, 1935, to answer in said cause of T. J. Thompson et al. v. The Pure Oil Company et al., No. 5371-A, pending on the docket of said court. This citation was duly served October 14, 1935. On November 4, 1935, attorneys for the Pure Oil Company, disavowing any intention of voluntarily entering into any hearing on their said plea of privilege filed as above mentioned on May 6, 1935, but expressly reserving all their rights with respect thereto, suggested to the court that, as no controverting affidavit had been filed by plaintiffs to said plea of privilege, it was the duty of the court to peremptorily sustain the plea of privilege and transfer the case to the district court of Van Zandt county. The court denied the suggestion or motion. The Pure Oil Company on the same day, November 4, 1935, filed a plea of privilege in the Seventh judicial district court of Smith county, but in doing so expressly reserved its rights under the plea of privilege filed May 6, 1935. The plea of privilege filed May 6, 1935, will be referred to as the "first plea of privilege," and that filed on November 4, 1935, will be referred to as the "second plea of privilege." The allegations of the second plea of privilege are the same as the first plea of privilege and also prays that the case be transferred to Van Zandt county. November 6, 1935, plaintiffs filed a controverting affidavit in the Seventh judicial district court of Smith county and on said date the court set November 25, 1935, as the date for hearing on the second plea of privilege and the controverting affidavit. On November 25, 1935, the Pure Oil Company, without waiving any of its rights in the premises, filed a motion praying the court to strike from the record and not consider for any purpose the controverting affidavit filed by plaintiffs. In the motion it was contended in effect that the first plea of privilege was timely and properly filed and that plaintiffs' controverting affidavit was filed too late to operate as an answer to that plea of privilege, since the 1935 May term of the special district court and the 1935 June term of the Seventh judicial district court had passed after filing of that (first) plea of privilege. At the conclusion of a hearing on said motion to strike from the record plaintiffs' controverting affidavit and not consider same, the court stated that he was of the opinion "that the first plea of privilege of the defendant, the Pure Oil Company, as well as its filing, was in all things legal and valid and that he would be compelled to transfer the case on such plea of privilege to the District Court of Van Zandt County, Texas." Whereupon by permission of the court plaintiffs filed a general demurrer and exceptions to said first plea of privilege. The demurrer and exceptions were heard and overruled by the court. The court then rendered judgment transferring the case to the district court of Van Zandt county, to which plaintiffs duly...
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