Yates v. State

Decision Date08 February 1928
Docket Number(No. 7180.)
Citation3 S.W.2d 114
PartiesYATES et al. v. STATE et al.
CourtTexas Court of Appeals

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by the State and others against I. G. Yates and others. From an interlocutory order overruling defendants' plea of privilege, defendants appeal. Affirmed.

Hill, Neill & Hill, Collins & Jackson and Harris & Harris, all of San Angelo, for appellants.

Claude Pollard, Atty. Gen., and C. W. Trueheart, Asst. Atty. Gen., for appellees.

BLAIR, J.

This appeal is from an interlocutory order overruling appellants' pleas of privilege to be sued either in the county of their residence or where the lands in suit are situated, and arose as follows: The state of Texas, through its Attorney General and for the public school fund, instituted in Travis county a suit in trespass to try title for the recovery of the title and possession of the mineral estate reserved to the public school fund in certain sold public school lands situated in Pecos county, as well as for damages to said lands for oil and gas taken therefrom, against appellants I. G. Yates and wife, Anna, alleging their residence to be Pecos county, where the lands were situated, appellants Brown Bros. alleging their residence to be Tom Green County, appellant Peerless Oil & Gas Company alleging it to be a Delaware corporation, with domicile in the state of Pennsylvania, and against numerous other defendants, none of whom resided in Travis county, according to the allegations of the petition, which alleges that all defendants were holding, occupying and claiming the lands adversely to the state and the public school fund. The petition also alleges that appellants, I. G. Yates and wife, Anna Yates, owned the lands under a purchase and award from the state by virtue of the terms of article 5310, which reserved the whole of the mineral estate in said lands to the public school fund, and that the act of the Thirty-Sixth Legislature, known as the "Relinquishment Act," which attempted to release to owners of the soil of sold public school lands with mineral classification fifteen-sixteenths of the oil and gas, was void as being violative of the provisions of the Constitution specifically pleaded. On March 7, 1927, appearance day, appellants filed pleas of privilege, each containing similar allegations, except as to county of residence, and to the effect that neither they nor any of the defendants named resided in Travis county; that the lands described were situated in Pecos county; that "no exception to exclusive venue in the county of one's residence provided by law exists in said cause"; and that "this suit does not come within any of the exceptions provided by law in such cases authorizing this suit to be brought and maintained in the county of Travis"; and two of the pleas of privilege further alleged that the lands involved "are sold public lands owned by the defendant I. G. Yates under a purchase and award from the state," etc. The state did not file a controverting plea to the pleas of privilege, as provided by article 2007, R. S. 1925, but, on June 11, 1927, filed what was designated "Plaintiff's Demurrer to Defendants' Pleas of Privilege," and in which, among other things, it was stated that the state "does not desire to controvert any questions of fact alleged or raised in the pleas of privilege * * * but demurs to the facts therein alleged as excluding venue in Travis county, * * * and * * * says that whether * * * their suit * * * was one coming within the provisions of article 5420, R. S. 1925, is * * * not a question of fact," but "a pure issue of law * * * not determinable adverse to plaintiff as a matter of course." Appellants moved to strike out this demurrer upon the following grounds which constitute the issues raised on this appeal: (a) That, since the several pleas of privilege were not controverted by a plea under oath, as required by article 2007, R. S. 1925, appellants' right to a change of venue could not be raised by the demurrer; (b) that the demurrer did not constitute a controverting plea under oath to the pleas of privilege within the purview of the statute; (c) that the demurrer came too late, having been filed more than three months after the pleas of privilege were filed; (d) that the demurrer was not a controverting plea under oath to the pleas of privilege, and the allegations of plaintiff's petition could not be used as a pleading thereon or as evidence.

The court overruled the motion to strike out the demurrer, and then heard and overruled the pleas of privilege without hearing evidence thereon, upon the ground that on their face and as a matter of law under the facts stated therein appellants were not entitled to a change of venue.

Appellants cite the following cases as being conclusive of their right to a change of venue, and as being conclusive of the following propositions of law which they assert control the case:

(a) That a plea of privilege in due form, and duly filed, as provided by article 2007, R. S. 1925, can be contested only by a controverting plea under oath setting up the specific facts claimed to confer venue where suit is pending; (b) that the allegation in a plea of privilege, "No exception to exclusive venue in the county of one's residence provided by law exists in said cause," constitutes a plea in due form; (c) that, upon the filing of such a plea of privilege, the burden is upon plaintiff to controvert same under oath, as required by said statute, and to sustain the controverting plea by evidence, and that the allegation of plaintiff's petition will not suffice as proof of such controverting plea; (d) and that, upon the filing of such a plea of privilege, the court is thereby divested of jurisdiction over defendant, except to transfer the cause in accordance with the plea.

Decisions by Supreme Court and Commission of Appeals: Craig v. Pittman & Harrison, 250 S. W. 667; Schumacher v. Dolive, 112 Tex. 564, 250 S. W. 673; Henry v. Henry, 113 Tex. 124, 251 S. W. 1038; World Co. v. Dow, 116 Tex. 146, 287 S. W. 241; Galbraith v. Bishop, 287 S. W. 1087.

Decisions by Courts of Civil Appeals: Witt v. Stith, 265 S. W. 1076; Box v. Deming Inv. Co., 286 S. W. 956; Cobb Grain Co. v. Watson, 290 S. W. 842; Bishop v. Galbraith, 246 S. W. 416; Green v. Brown, 271 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. 450.

The Attorney General takes issue only with propositions (a) and (d) asserted by appellants, and with respect thereto contends as follows: (a) That the only question on this appeal "is whether the filing of appellants' pleas of privilege, no controverting plea being filed at any time thereafter, divested the trial court of jurisdiction to do anything but transfer this cause to some other county, regardless of whether the pleas of privilege upon their face, as a matter of law, entitled appellants to such transfer"; (b) that, where a plea of privilege on its face as a matter of law shows no right of transfer, there is no necessity of controverting the facts stated under oath, but the plea of privilege may be contested by any authorized pleading, such as a demurrer thereto, and at any time before the plea of privilege is acted upon; (c) that, where the plea of privilege itself alleges facts which fix venue where the suit is filed as a matter of law, there is no necessity of controverting same under oath, it being unnecessary for plaintiff in such a case to make oath as to the law controlling the venue question in order to avail himself of the right to contest the plea of privilege.

In addition to articles 2007, 2008, and 5420, R. S. 1925, the Attorney General cites and relies upon the following cases as supporting the state's contentions: Thomason v. Ham (Tex. Civ. App.) 210 S. W. 561; Koch v. Roedenbeck (Tex. Civ. App.) 259 S. W. 328; Nolen v. Harding (Tex. Civ. App.) 235 S. W. 687; Knox v. Cunningham (Tex. Civ. App.) 226 S. W. 461; American Rio Grande Land & Irrigation Co. v. Karle (Tex. Civ. App.) 237 S. W. 358. Appellants contend that these cases are in conflict with the cases cited by them, supra. We are clear in the view that they are not so, and that they sustain the contentions of the Attorney General; and they certainly support the common sense and practical view of the matters at issue here.

It is true that some early cases by the Courts of Civil Appeals held that, unless plaintiff controverted a plea of privilege under oath and within the time allowed by the statute, the court was without jurisdiction to even determine the sufficiency of the plea of privilege, and must transfer the case; but recent decisions by all the courts overrule those cases, and hold that, unless plaintiff shall controvert the plea of privilege within the time prescribed, and as directed by the statute and under oath, the court is without further jurisdiction over defendant on the venue question, except to hear the plea of privilege, and, if it is found sufficient as required by the statute, to transfer the cause in accordance therewith. So it is clear, under the recent decisions cited by appellants, supra, that the law is now settled that the trial court must hear and determine, not only whether the plea of privilege is in due form and timely filed, but must also determine, where the issue is raised by some authorized pleading, the legal sufficiency of the plea of privilege as tested by the law controlling the venue of the particular kind or character of suit pending; that is, where the legal sufficiency of a plea of privilege is contested by appropriate pleadings, such as a demurrer thereto, and the issue or question raised is one determinable solely from the...

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