Wallace v. Adams
| Decision Date | 18 May 1922 |
| Docket Number | (No. 2562.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 243 S.W. 572 |
| Parties | WALLACE et al. v. ADAMS. |
| Court | Texas Court of Appeals |
Appeal from Collin County Court; A. L. Moulden, Judge.
Action by James R. Adams against C. H. Wallace and others. From a judgment for plaintiff, defendants appeal. Judgment affirmed.
See, also, 217 S. W. 1079.
J. M. Burford, of Mt. Pleasant, and Wallace Hughston, of McKinney, for appellants.
G. R. Smith and W. R. Abernathy, both of McKinney, for appellee.
The appellee, Adams, sued the appellants Wallace as maker and Ford as indorser upon a promissory note for $300, exclusive of interest and attorney's fees. Among numerous defenses not involved in this appeal Wallace pleaded as an offset an unsatisfied judgment theretofore rendered in his favor in the county court of Titus county against Adams. In a supplemental petition Adams thus attacks the validity of that judgment:
"Plaintiff denies that the defendant has a valid judgment against him as set out in his answer, but avers the fact to be that suit was filed on said claim and that the plaintiff (defendant in that suit) interposed a plea of privilege to be sued in his own county, which plea was by the court overruled, and from which action plaintiff (defendant there) appealed the case to the Court of Civil Appeals at Texarkana, Tex., and that upon hearing of said case at Texarkana the court reversed and remanded the case on the ground that the plea of privilege should be sustained, and ordered the case transferred to Collin county, Tex. Wherefore plaintiff says that any judgment he may have had in the Titus county court on said cause of action is invalid," etc.
In a trial before the court a judgment was rendered in favor of Adams, the appellee, for the amount sued for, and denying the offset pleaded by the appellants.
In this appeal it is agreed that but one question is presented: Did the trial court err in refusing to allow that offset? In the absence of a statement of facts the parties rely upon the following findings filed by the trial judge:
Prior to the May term, in 1919, of the county court of Titus county, Tex., C. H. Wallace filed suit in that court against Adams, the appellee. Adams appeared, and answered only by a plea of privilege, claiming the right to be sued in the county court of Collin county, the place of his residence. On that plea issue was joined on the 22d day of May, 1919, and on the same day the plea of privilege was by the court overruled, to which order Adams excepted and gave notice of appeal, which was thereafter perfected. After overruling the plea of privilege the case was on the same day called for trial, but the defendant, Adams, refused to further answer, and made no further appearance. The court then proceeded to hear the evidence, and thereafter rendered judgment in favor of Wallace against Adams for the sum of $700. No exception was taken to that judgment, and no appeal was prosecuted, and the judgment has never been satisfied. The court of Civil Appeals (217 S. W. 1079) subsequently reversed the order of the trial court overruling Adams' plea of privilege, and the cause was ordered transferred to the county court of Collin county for trial upon its merits. The case, however, remained upon the docket of the county court of Titus county.
Appellants Wallace and Ford contend that the facts found by the trial court show the existence of a valid, unsatisfied judgment against Adams which should have been allowed as an offset in the trial of this case, while the appellee insists that the same facts disclose an invalid judgment which the court properly refused to allow as an offset. The only question, then, is: Was the judgment rendered against Adams in the former suit valid? Or, to state it differently: Did the Titus county court have the power to proceed with the trial of that case upon its merits after Adams had given notice of appeal from the order overruling his plea of privilege?
Then follow numerous exceptions not necessary here to mention. This, of course, is merely a provision for fixing the venue of suits. It does not affect the judicial power of a court over such a nonresident defendant unless the latter by a special plea claims the privilege of being sued in the county of his residence.
Article 1903, as amended by the act of 1917 (Vernon's Ann. Civ. St. 1918, art. 1903), provides that, when a plea of privilege in proper form is presented, it shall be prima facie evidence of the truth of the facts alleged in it. If the opposing party desires to controvert the plea, he must file a contest, under oath, setting out specifically the fact or facts upon which he relies for venue of the cause. The plea and the contest shall be set down for a hearing, and 10 days' notice served upon the defendant or his attorney. It is also provided that, unless the plea is controverted in the manner prescribed, the case must be transferred to the county of the defendant's residence. It thus appears that, when the defendant filed a proper plea of privilege, he presents a preliminary question which challenges the jurisdiction of the court over his person, and which automatically arrests the power of the court to adjudicate any other issue raised by the pleading. That plea alone, when filed, unless controverted, divests the court of jurisdiction over the person of the defendant, and requires a relinquishment of all authority to try the case. If the plea is controverted, then the issue thus presented must be tried before proceeding to a trial upon the merits. Either party may appeal from the order or judgment rendered upon that hearing, and, when such an appeal is...
To continue reading
Request your trial
-
Yates v. State
...S. W. 394; Bennett v. Rose, 226 S. W. 143; Davis v. Southland Cotton Oil Co., 259 S. W. 298; Meadows v. Turner, 270 S. W. 899; Wallace v. Adams, 243 S. W. 572; Smith v. Daniel, 288 S. W. 496; Brooks v. Wichita Mill & Elevator Co., 211 S. W. 288; Uvalde Paving Co. v. Davis, 269 S. W. The Att......
-
Ammex Warehouse Co. v. Archer, A-10117
...the necessity of filing a supersedeas bond. 21 Tex.Jur. 368, § 106, 370, § 107, and authorities cited.' Similarly in Wallace v. Adams, Tex.Civ.App., 243 S.W. 572, wr. dis., 1922, it was said 'The state may appeal without bond, so may guardians and administrators; yet the judgments from whic......
-
City Nat. Bank of Spur v. Rhome-Farmer Livestock Commission Co.
...325; Met. Loan Co. v. Reeves (Tex. Civ. App.) 236 S. W. 762. Appellant urges that the cases of McKean v. Martin, 243 S. W. 575, Wallace v. Adams, 243 S. W. 572, Hill v. Brady, 231 S. W. 145, Hill v. Wood, 238 S. W. 309, and First National Bank v. Gates, 213 S. W. 720, all by the Courts of C......
-
Smith v. Citizens' Nat. Bank
...there has been a trial on the merits, and not upon default. McKean v. Martin (Tex. Civ. App.) 243 S. W. 575. See, also, Wallace v. Adams (Tex. Civ. App.) 243 S. W. 572. In this case there was a trial on the merits and judgment entered upon the cause of action declared upon, and the whole ca......