Leonard v. Maxwell , 1962 Tex. App. LEXIS 2364 ( 1962 )

ARCHER, Chief Justice.

This is an appeal from an order of the District Court overruling a plea of privilege.

Appellees brought this suit in Travis County on February 13, 1961 against appellant for damages sustained by plaintiff Violet Maxwell as a result of being struck by an automobile driven by appellant.

The petition alleged several acts of negligence, such as that defendant was operating his automobile at a greater rate of speed than a person of ordinary care and prudence would have done, failure to sound his horn, failure to keep a proper lookout, failure to apply his brakes and failure to turn his automobile, all of such acts and omissions were a proximate cause of the injuries sustained by Violet Maxwell.

On March 31, 1961, the defendant filed his plea of privilege alleging that he is a resident of Dallas County, Texas, together with his original answer subject to such plea.

The defendants filed their controverting plea of privilege in which it was alleged that there was an exception to exclusive venue existing in the case and that the allegations in the original petition are true and correct and that plaintiffs were entitled to maintain their suit in Travis County. This pleading was signed by one of plaintiffs’ attorneys, but was not sworn to.

On May 29, 1961 appellant filed his motion to strike the controverting plea because it was not verified, and to sustain the plea of privilege and to transfer the cause. Later on the same day plaintiffs filed their First Amended Controverting Plea of Privilege reciting that it was filed with leave of Court. This pleading was sworn to by •One of appellees’ attorneys. ■.. ;

The motion to strike was overruled on June 8, 1961, after a hearing at which one of plaintiffs’ attorneys stated the circumstances surrounding the filing of the first pleading and the Court stated that he had always followed the policy of letting the parties amend prior to going to trial unless it would prejudice the position of some party and there was no abuse of discretion shown.

The prime point at issue in this cause is the right of plaintiffs to amend and file a controverting plea duly verified.

We believe that the plaintiffs had the right granted by the Trial Court to file their amended controverting plea under the same rules as other pleadings and when amended, it related back to and superseded the original controverting plea. Rule 63, Texas Rules of Civil Procedure; Texas Employers Ins. Ass’n v. Campion, Tex.Civ.App., 236 S.W.2d 193; Gulf Production Co. v. Granger, 122 Tex. 303, 55 S.W.2d 531.

Appellant appears to take the position that when appellees failed to properly verify their controverting plea that the Trial Court lost jurisdiction over the case and could only order it transferred.

We do not believe that this is the rule or law. Jurisdiction is that to enter a judgment in the main suit and not to dispose of a plea of privilege on the merits. This distinction is pointed out in Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, wherein the Court said:

“ * * * but jurisdiction of the plea of privilege, and of the subject-matter of such plea, is quite a different thing. The statute does not say that the failure of the plaintiff to file a controverting plea within the time there prescribed shall have effect to divest the court of jurisdiction of the plea of privilege, or of its subject-matter. * * * It thus appears that jurisdiction of the subject-matter of the plea remains in the court until the court, by affirmative action, surrenders that jurisdiction. Incident to jurisdiction of the subject-matter of the plea, the court has authority to allow, for good cause shown, a contest of said plea, even though the contest be filed after the lapse of time prescribed in article 2007.”

Appellant cites Continental Fire & Casualty Ins. Corp. v. Whitlock, Tex.Civ.App., 210 S.W.2d 261, as supporting his theory that a defective affidavit was wholly insufficient.

In that case the Court did reverse the Trial Court’s holding overruling a plea of privilege, but remanded the case to the Trial Court. On a subsequent trial the plea of privilege was overruled and on the second appeal the defendant contended that because the original plea was not properly sworn to that it was void and constituted no basis for an amendment. This contention was overruled and the Court held that the amendment was under the same rules as other pleadings.

We believe the Court correctly overruled the defendant’s special exceptions to plaintiffs’ controverting plea. The Court, at defendant’s request made findings of facts that defendant struck Violet Maxwell, causing painful injuries; that defendant was operating his automobile at a greater rate of speed than a person of ordinary care would have operated it; that defendant failed to sound his horn, failed to keep a proper lookout, failed to apply his brakes and failed to turn his automobile, and that all of which negligent acts and omissions were a proximate cause of the injuries. The Court concluded that the defendant committed acts and omissions of negligence in Travis County, Texas, which were a proximate cause of plaintiffs’ damages.

The defendant did not contest the fact findings and the conclusions of law and such are therefore admitted.

A. J. Rife Construction Co. v. Brans, Tex.Civ.App., 298 S.W.2d 254, error ref., N.R.E.

The special exceptions were directed to the failure of plaintiffs to adopt or incorporate the original petition to allege facts necessary to establish venue.

The controverting pleas used the following language:

“Plaintiffs allege that the allegations contained in their original petition on file herein are true and correct, and that plaintiffs are entitled to bring this suit in Travis County against the defendant John S. Leonard, Jr., under Sec. 9a of Art. 1995, Revised Civil Statutes of Texas.”

This is an approved way of pleading the grounds relied on in controverting a plea of privilege. Duncan v. Denton County, Tex.Civ.App., 133 S.W.2d 197, error dism. Rule 58, T.R.C.P.

The orders and judgment of the Trial Court are affirmed.

Affirmed.