Universal Credit Co. v. Boling, 13518.
| Decision Date | 12 February 1937 |
| Docket Number | No. 13518.,13518. |
| Citation | 103 S.W.2d 253 |
| Parties | UNIVERSAL CREDIT CO. v. BOLING. |
| Court | Texas Court of Appeals |
Appeal from Young County Court; E. M. Remington, Judge.
Action by S. P. Boling against the Universal Credit Company. From a judgment overruling its plea of privilege, defendant appeals.
Affirmed.
S. L. Lewis, of Dallas, for appellant.
S. P. Boling, of Graham, for appellee.
S. P. Boling instituted a suit in the county court of Young county against the Universal Credit Company, a foreign corporation having a permit to do business in Texas, to recover the statutory penalty of double the amount of all interest paid by him to defendant on an alleged contract for the loan of money. Vernon's Ann.Civ.St. art. 5073.
The petition was filed on January 6, 1936, and citation issued returnable to the February term, shown to convene on February 3, 1936. Plaintiff's allegations show defendant had an agent and representative in Graham, Young county, Tex., upon whom service of citation could be had; that he purchased an automobile from La Sage Motor Company, at Graham, Tex., on June 1, 1934, for which he agreed to pay $752; that he paid $199 at the time of the purchase; that he borrowed from the defendant the remainder of the purchase money with which to pay La Sage Motor Company in the sum of $553, and defendant purchased and paid for insurance on the automobile, the premium being $18.13, making a total sum owing by plaintiff to defendant of $571.13; that defendant, acting by and through its agent, A. W. Swenson, who is also manager of the La Sage Motor Company at Graham, Texas, required plaintiff to execute his note or conditional sale contract in the sum of $694, payable in sixteen monthly installments, the first fifteen of which were for $30 each and the sixteenth being for $244; that he paid each and all of said installments within the sixteen months provided in the contract, the last payment being made on October 1, 1935. That by the terms of the contract, the plaintiff was required to pay and did pay to the defendant the sum of $122.87 as interest for the use and detention of $571.13 for a period of sixteen months; prayer was for judgment for double the amount of interest alleged to have been paid.
On February 3, 1936, return day in the cause, defendant filed a motion to quash the citation, and on the same day filed a plea of privilege, which plea was in statutory form (Vernon's Ann.Civ.St. art. 2007), containing the usual necessary expressions: "That no exception to the exclusive venue in the county of one's residence provided by law exists in this cause." And further: "That this suit does not come within any of the exceptions provided by law in such cases authorizing this suit to be brought or maintained in the county of Young, State of Texas, or elsewhere outside of the county of Dallas."
On February 6, 1936, the plaintiff filed his controverting affidavit to the plea of privilege, which alleged, substantially, as did the petition and refers to and makes the petition a part of the controverting plea.
The time for hearing the plea of privilege was set by the court for February 20, 1936, and notice thereof issued, but the notice was not served in time for the hearing on that date and the court of its own motion without prejudice reset the hearing on the plea for April 6, 1936.
On the last-mentioned date, the court entered an order overruling the motion to quash citation, and called a hearing on the plea of privilege, all parties appeared and trial was had. The court overruled plaintiff's general and special demurrers to the sufficiency of the plea of privilege, and after hearing the evidence adduced, overruled the plea of privilege, from which order this appeal is prosecuted.
There are no assignments of error brought forward for review by us, and under such conditions we can only consider fundamental errors, if any, appearing in the record. Defendant, the appellant here, recognizes that rule and has offered, in forms of propositions, a number of matters claimed to be fundamental errors, of which it is claimed we should take cognizance.
The propositions proposed by appellant cover such matters as:
When motion to quash citation is timely filed and no action is taken thereon during the term, it is waived and the defendant is required to answer at the succeeding term of court.
The filing of motion to quash does not waive the right of a defendant to subsequently file a plea of privilege.
When a motion to quash citation is filed, plea of privilege subsequently filed is not subject to being controverted or considered by the court until the motion to quash is disposed of.
The filing of a plea of privilege deprives the court of jurisdiction to enter any other order in the case than to transfer the cause on the plea, unless a controverting plea is filed in the manner and within the time prescribed by law and a time set for hearing and notice thereof issued and served within the time prescribed by law.
When a plea of privilege is filed in a cause of action for usury the controverting affidavit must allege a cause of action for usury.
Other propositions were presented concerning the sufficiency of plaintiff's (appellee's) petition and controverting affidavit as to agency of the corporation to confer jurisdiction.
The view we take of this appeal renders it unnecessary to discuss at length any of the propositions made by appellant, since we do not consider them pertinent to this type of case and plea of privilege. This being a suit for usury, the statute fixes the venue and it is not controlled by general rules where it is dependent upon proof of facts raised by a controverting plea, but is a question of law requiring no proof. It is determined by...
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...Co. v. Daves, Tex. Civ.App., 71 S.W.2d 340; McCook v. Amerada Pet. Corp., Tex.Civ.App., 73 S. W.2d 914; Universal Credit Co. v. Boling, Tex.Civ.App., 103 S.W.2d 253 (changed on rehearing, Id., Tex.Civ.App., 108 S.W.2d 836); Miller v. Burnet Merc. Co., Tex.Civ.App., 65 S.W.2d 505; Lloyds Ame......
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Donald v. Agricultural Livestock Finance Corp.
...should be sustained. Ragland v. Short, 245 S.W.2d 368 (San Antonio Civ.App.1951, petition for mandamus overruled); Universal Credit Co. v. Boling, 103 S.W.2d 253 (Fort Worth Civ.App.1937, with reference in Writ of Error tables to 105 S.W.2d 867 and 108 S.W.2d 836). The reference of 105 S.W.......
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Cowan v. State, 10,969
...5 S.W.2d 495, 498; Stanolind Oil & Gas Co. v. State, Tex.Civ.App., 153 S.W.2d 614, 616, no writ history. But in Universal Credit Co. v. Boling, Tex.Civ.App., 103 S.W.2d 253, a suit to recover statutory penalties under Art. 5073, V.C.S., a special venue statute, the plea of privilege was fil......