Tunstill v. Scott, 1885-7806.

• Decision Date: 11 March 1942
• Docket Number: No. 1885-7806.,1885-7806.
• Citation: 160 S.W.2d 65
• Parties: TUNSTILL et al. v. SCOTT.
• Court: Texas Supreme Court

Page 65

160 S.W.2d 65

TUNSTILL et al. v. SCOTT.

No. 1885-7806.

Commission of Appeals of Texas, Section B.

March 11, 1942.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by Naomi Scott against W. A. Tunstill and others for fraudulent procurement of deeds to certain land by one defendant who transferred it to other defendants who had knowledge of such fraud, which suit was transferred from Tarrant County to Gregg County, whereupon certain defendants filed a plea of privilege to be sued in Tarrant County. From an order overruling such plea such defendants appealed to the Court of Civil Appeals which certified certain questions for answer.

Questions answered.

See, also, 120 S.W.2d 274, 144 S.W.2d 604.

H. S. Lattimore and John A. Scott, both of Fort Worth, for appellants.

Chester Clark, Clark & Stegall, and Clark, Craik, Burns & Weddell, all of Fort Worth, for appellee.

SMEDLEY, Commissioner.

The Court of Civil Appeals for the second district has certified to this court two questions arising from two orders overruling pleas of privilege.

The facts stated in the certificate and shown by the transcript are in substance as follows: Appellee, Naomi Scott, filed suit in a district court of Tarrant County against appellants W. A. Tunstill and wife, Eula Tunstill, and G. G. Tunstill, alleged to be residents of Tarrant County, and G. A. Tunstill, alleged to be temporarily residing in Harris County. The facts averred in the petition are that plaintiff owned certain lands in Gregg County and that defendant G. A. Tunstill fraudulently induced her to execute deeds by which the land was conveyed to him, falsely representing that it was necessary that the land be conveyed to him in order that he, as her attorney, could establish and protect her rights and interests; that thereafter G. A. Tunstill conveyed the land to defendants W. A. Tunstill and wife, Eula Tunstill, and G. G. Tunstill, the father and mother and brother of G. A. Tunstill, who knew that the deeds to G. A. Tunstill had been fraudulently procured, and to various other persons unknown to plaintiff; that defendants have received from the land oil runs and large sums of money that they unlawfully withhold from plaintiff, to her damage in the sum of $75,000; that if defendants have parted with title to the property, plaintiff should have an accounting from them for all sums realized therefrom by sales of mineral rights, royalties and oil and judgment for the value of the property; that by the acts of the defendants she has been damaged in the sum of $75,000, which she is entitled to recover from them jointly and severally. The prayer is for judgment cancelling the deeds, for accounting, and for judgment for damages against defendants jointly and severally.

Defendant G. A. Tunstill filed a plea of privilege in statutory form to be sued in the county of his residence, Harris County. Plaintiff by controverting affidavit alleged, as facts relied upon to confer venue of the cause on the district court of Tarrant County, that by defendant's representations and acts in procuring the deeds fraud was committed in Tarrant County within the meaning of subdivision 7 of Article 1995, Vernon's Ann.Civ.St., and that because three of the defendants, W. A. Tunstill, Eula Tunstill and G. G. Tunstill were residents of Tarrant County and necessary and proper parties to the suit, venue was properly laid in Tarrant County under subdivision 4 of Article 1995. After trial of the issues made by the filing of the controverting affidavit, the district court overruled the plea of privilege, finding that the deed from plaintiff to Eula Tunstill conveying seven and one-fourth acres was made as a matter of convenience and to expedite the handling of plaintiff's interest in the property, that plaintiff received no consideration therefor and was entitled to an accounting from each of the defendants for the revenues, proceeds and profit received by them from the land, and that plaintiff had the right under subdivision 4 of Article 1995 to maintain her suit in Tarrant County as to all of the defendants. The court further found that it was not necessary to make a finding as to the allegations of fraud contained in the controverting affidavit.

On appeal by G. A. Tunstill from the order overruling his plea of privilege, the Court of Civil Appeals held that the plaintiff failed to prove on the hearing of the plea of privilege that she had a cause of action against the defendants who resided in Tarrant County, reversed the trial court's order overruling the plea, and rendered judgment ordering that the cause in its entirety be transferred to the district court of Gregg County "because the primary purpose of plaintiff's case is to cancel and annul all deeds, conveyances and instruments in writing executed by her, and affecting the title to her lands in Gregg County, Texas. * * * We are without authority to transfer the cause to Harris County, because the suit cannot be tried by piecemeal." 120 S.W.2d 274, 278.

Immediately after the papers in the case were filed in the district court of Gregg County, defendants, W. A. Tunstill, Eula Tunstill and G. G. Tunstill, each filed a plea of privilege in statutory form to be sued in Tarrant County. Plaintiff, Naomi Scott, filed no controverting affidavits to these pleas. The district court of Gregg County overruled the pleas of privilege, with the recital in the order that the time allowed by statute for filing controverting affidavits had passed and that the pleas should be sustained but for the judgment of the Court of Civil Appeals by which the entire cause had been transferred to Gregg County.

From the order of the district court of Gregg County overruling their pleas of privilege, said defendants appealed to the Court of Civil Appeals at Texarkana and the cause was transferred to the Court of Civil Appeals for the second district, which deemed it necessary to certify the following questions:

"(1) Having construed the plaintiff's petition to state a cause of action falling within subdivision 14 of Article 1995, Revised Civil Statutes, did the Court of Civil Appeals have the authority to order the cause transferred to the district court of Gregg County, when neither the defendant, who presented a plea of privilege to be sued in Harris County, where he resides, nor any other defendant prayed for the cause to be transferred to Gregg County?

"(2) If you have found that the order made by the Court of Civil Appeals transferring the suit to Gregg County, was one that such court had the authority, under the facts, to make, then did the pleas of privilege filed by the defendants, who reside in Tarrant County, in the absence of any controverting plea on the part of the plaintiff require, as a matter of law, that the district court of Gregg County sustain such pleas?"

Article 2008 provides that after the filing of a controverting affidavit the judge shall note thereon a time for the hearing on the plea of privilege and that the hearing, "unless the parties agree upon the date, shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon." We have emphasized the words "served on each defendant", for their use plainly shows that when there are two or more defendants and one of them files a plea of privilege to which a controverting affidavit is filed, service of a copy of the affidavit on all of the defendants, not merely on the one who filed the plea, is necessary. The requirement of service is jurisdictional. Without the service, and there being no waiver of it, the court has no jurisdiction, over the defendant not served, to enter an order overruling the plea. Alpha Petroleum Co. v. Gray, Tex.Civ.App., 103 S.W.2d 1047; Scruggs v. Gribble, Tex.Civ.App., 41 S.W.2d 643; Panther Oil & Grease Mfg. Co. v. Crews, Tex.Civ.App., 124 S.W.2d 436; Craig v. Pittman & Harrison Co., Tex.Com.App., 250 S.W. 667, 670.

We believe that it is apparent from the record before us that there was no service of a copy of plaintiff's controverting affidavit on any other defendant than G. A. Tunstill, by whom the plea of privilege was filed. The prayer of the controverting affidavit is that the plea of privilege be heard after notice to the defendant G. A. Tunstill. The order of the district court overruling the plea of privilege contains no recitals of service. It makes reference to the plea of privilege and the controverting plea filed by plaintiff and states that after hearing the pleas and evidence the plea of privilege is overruled, and that the defendant G. A. Tunstill excepts and gives notice of appeal. The findings made by the district court contain a long statement about issuance of notices for service on G. A. Tunstill and of the service finally made on him, but make no mention of the issuance of notice to the other defendants or of any service on them. G. A. Tunstill's bond filed in perfecting appeal from the order overruling the plea of privilege is payable only to the plaintiff.

When the venue was challenged by G. A. Tunstill's plea of privilege, the burden was thereby placed upon plaintiff, both by pleading and by proof offered on the hearing, all in the manner prescribed by the statute, to bring the case within one of the exceptions and thus to establish the right to maintain venue in the county in which the case was pending. And in view of the provision of Article 2008, that no hearing of the plea of privilege shall be had when a controverting affidavit has been filed until each defendant has been served with a copy of the affidavit, it was incumbent upon plaintiff, in order to make the trial court's order on the hearing, and the judgment of the Court of...