Tyler Milk Products Co. v. Shipman
| Decision Date | 05 May 1939 |
| Docket Number | No. 5409.,5409. |
| Citation | 129 S.W.2d 444 |
| Parties | TYLER MILK PRODUCTS CO. v. SHIPMAN et al. |
| Court | Texas Court of Appeals |
Appeal from Upshur County Court; J. P. Maberry, Judge.
Action by T. L. Shipman and others against the Tyler Milk Products Company to recover damages growing out of an automobile collision claimed to have been caused by negligence of defendant's truck driver. From an order of the county court overruling defendant's motion to strike a controverting affidavit filed by plaintiffs and overruling defendant's plea of privilege to be sued in the county of its residence, defendant appeals.
Affirmed.
Thompson, Knight, Baker, Harris & Wright and Rhodes S. Baker, Jr., all of Dallas, for appellant.
M. G. Mell, of Gilmer, for appellees.
This appeal is by Tyler Milk Products Company, defendant below, from an order of the court overruling defendant's motion to strike the controverting affidavit filed by plaintiffs, T. L. Shipman and others, and overruling defendant's plea of privilege.
Plaintiffs filed their suit in the County Court of Upshur County, seeking to recover damages against the defendant, resulting from a collision occurring in Upshur County between defendant's truck and plaintiff's truck, caused by alleged negligence of defendant's driver. Citation was issued and served on the defendant, returnable May 17, 1937. On May 15th defendant filed its plea of privilege to be sued in Smith County, the county of its residence. The plea of privilege is in statutory form, meeting the requirements of R.S. Article 2007, and shows that the defendant is a corporation having its domicile in Smith County. On June 11th at the appearance term, but more than five days after appearance day, plaintiffs filed their affidavit controverting defendant's plea of privilege, according to the allegations of which venue of the case was shown to be in Upshur County under exceptions 9 and 23 of Article 1995. On June 30th defendant filed its motion to strike plaintiffs' controverting affidavit and on July 31st filed its second motion to strike plaintiffs' controverting affidavit. On August 6th plaintiffs filed their reply to defendant's motion to strike, in which reply plaintiffs alleged certain facts, hereinafter recited, as good cause for their delay in filing of the controverting affidavit. On August 12th a hearing was had on the motion to strike and upon the plea of privilege, resulting in judgment of the court overruling the motion to strike and overruling the plea of privilege.
Appellant's first contention is that the trial court erred in overruling its motion to strike plaintiff's controverting affidavit, because, it is contended, plaintiffs showed no good cause for their failure to file the controverting affidavit within five days after appearance day, the time prescribed by Article 2007.
Article 2007 provides: "If the plaintiff desires to controvert the plea of privilege, he shall within 5 days after appearance day file a controverting plea under oath, setting out specifically the * * * facts relied upon to confer venue of such cause on the court where the cause is pending."
Article 2008 provides:
On the issue of good cause plaintiff's attorney testified that prior to appearance day of the May Term, 1937, and prior to the filing...
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