Wichita Falls & S. R. Co. v. McDonald

Decision Date20 October 1943
Docket NumberNo. 8127.,8127.
Citation174 S.W.2d 951
PartiesWICHITA FALLS & S. R. CO. v. McDONALD, Chief Justice, et al.
CourtTexas Supreme Court

Leslie Humphrey and G. C. McDermett, both of Wichita Falls, and Conner & Conner and Earl Conner, Sr., both of Eastland, for relator.

Hill & Paddock and Massingill & Belew, all of Fort Worth, for Gillette Motor Co.

Buck & Kemble, of Fort Worth, for Whitfield.

ALEXANDER, Chief Justice.

This is an original mandamus proceeding brought in this Court to require the Court of Civil Appeals to certify to this Court certain questions of law involved in the case of Gillette Motor Transport Company v. Wichita Falls & Southern Railroad Company.

On July 8, 1942, the trial court overruled defendant's plea of privilege to be sued in the county of its residence. The defendant did not file a motion for new trial, nor did it prosecute an appeal from such ruling. Thereafter, on November 16, 1942, the defendant orally represented his plea of privilege and the court sustained the same and ordered the suit transferred as therein requested. The plaintiff prosecuted an appeal from that ruling. The Court of Civil Appeals reversed the judgment of the lower court and held that the order of date November 16, 1942, sustaining the plea of privilege, was void. 170 S.W.2d 629.

We granted leave to file the petition for writ of mandamus because we were of the opinion that the holding of the Court of Civil Appeals was in conflict with the holding of the Court of Civil Appeals at Dallas in the case of Duncan v. Glasscock, 118 S.W.2d 658.

The suit was brought in the Forty-eighth District Court of Tarrant County. That court has four terms each year, beginning on the first Mondays in February, May, August, and November, respectively. All the civil courts of that county have successive terms throughout the year, with not more than two days intervening between any of such terms, and consequently the procedure therein is subject to the provisions of Rule 330, Texas Rules of Civil Procedure. Subsections (j) and (l) of said rule are as follows:

"(j) Motion for New Trial. A motion for new trial filed during one term of court may be heard and acted on at the next term of court. If a case or other matter is on trial or in process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of the court. No motion for new trial or other motion or plea shall be considered as waived or overruled, because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the judge may fix or to which it may have been postponed or continued by agreement of the parties with leave of the court. All motions and amended motions for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date."

"(l) Judgments Final, When. Judgments of such civil district courts shall become as final after the expiration of 30 days after the date of judgment or after a motion for a new trial is overruled as if the term of court had expired. After the expiration of thirty days from the date the judgment is rendered or motion for new trial is overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other district courts."

Ordinarily the ruling of the court on an interlocutory matter made at one term may be set aside or altered at a subsequent term of court, provided the case has not been previously disposed of on its merits. Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S.W. 39; Kuehn v. Kuehn, Tex.Com.App., 242 S.W. 719.

The sustaining or overruling of a plea of privilege is an interlocutory order in some respects — that is, it does not constitute a final disposition of the suit on its merits. Magouirk v. Williams, Tex.Com. App., 249 S.W. 185, 186; Perkins v. Texas Bank & Trust Co., Tex.Com.App., 249 S. W. 186, 187; Izaguirre v....

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41 cases
  • Voth v. Felderhoff
    • United States
    • Texas Court of Appeals
    • March 16, 1989
    ...erred in permitting intervention of third parties after judgment had been rendered and become final); and Wichita Falls & S.R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951 (1943) (trial court erred in granting a plea of privilege more than thirty days after it had originally overruled the ......
  • Hill v. W. E. Brittain, Inc.
    • United States
    • Texas Court of Appeals
    • June 24, 1966
    ...during the same or a subsequent term provided the case had not been previously disposed of on its merits. Wichita Falls & S.R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951 (1943), citing Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S.W. 39 (1900); and Kuehn v. Kuehn by the Tex.Com. of ......
  • Gillette Motor Transport Co. v. Whitfield, A-1087.
    • United States
    • Texas Supreme Court
    • March 12, 1947
    ...Motor Transport Company v. Whitfield, 160 S.W.2d 290; Id., 170 S.W. 2d 629; Id., 186 S.W.2d 90; and Wichita Falls & Southern Ry. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951. Preliminary to the submission of the special issues the court instructed the jury as follows: "You will not take in......
  • Humble Oil & Refining Co. v. Preston
    • United States
    • Texas Court of Appeals
    • June 13, 1974
    ...and our guide.' Under Texas law, venue rulings acquire the same finality as judgments on the merits. Wichita Falls & S.R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951, 952 (1943); Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148, 149--150 (1952). However, the power of the trial court to try......
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