Henry v. Henry ( 1923 )

The following certified question has been submitted to this section of the Commission for consideration, viz:

"The defendant in error, J.S. Henry, instituted this suit in the 17th District Court of Tarrant County on the 21st day of June, 1920, against Mrs. Ruby Henry, plaintiff in error, to recover a tract of land situated in Van Zandt County, Texas. The defendant, plaintiff in error here, was duly cited and on the first day of October, 1920, filed with the clerk of said court her plea of privilege to be sued in Van Zandt County, alleged to be the county of her residence. The plea was duly verified and in all respects sufficient under the amendment of 1917 relating to that subject. See, article 1903, V.S. Tex. Civ. Stats., 1918 Sup. The record discloses no further action until February 12, 1921, when, the defendant not having answered, judgment was rendered in favor of the plaintiff J.S. Henry for the title and possession of the lands as prayed for.

Several terms of court intervened between the filing of the plea of privilege and the judgment and the record fails to disclose that the plea was called to the court's attention, or that any request was made by the defendant for a disposition of the same, nor does the judgment in any way refer to or dispose of the plea of privilege, and plaintiff in error has prosecuted the writ herein and assigns error to the action of the Court in failing to dispose of her plea, insisting that the plea should have been granted and the venue of the suit transferred to the district court of the county of her residence.

This court held, upon the authority of Brooks v. Wichita Mill Elevator Co., 211 S.W. 288; Bennett v. Rose Mfg. Co.,226 S.W. 143, and Murphy v. Dabney, 208 S.W. 981, that the trial court erred and that the judgment should be reversed for the reasons set forth in our original opinion, which will be transmitted herewith, and accordingly reversed the judgment below and ordered the case transferred to Van Zandt County, as prayed for in the plea of privilege.

The defendant in error has presented a motion for rehearing which is now pending before us and requests, in the event we are inclined to overrule it, that the question involved be certified to your Honors, and inasmuch as our conclusion is perhaps in conflict with the following cases cited in behalf of defendant in error, towit: Harris Millinery Co. v. Melcher, 142 S.W. 100; Beall v. Moore, 210 S.W. 622; Lyons Bros. Co. v. Corley,135 S.W. 603; Auds Oil Co. v. Brooks Supply Co., 221 S.W. 319; and Roundtree v. Rowe, 227 S.W. 715, we deem it advisable to certify to your Honors for determination the question of whether under the facts stated plaintiff in error waived her plea of privilege?"

In the case of Craig, et al. v. Pitman-Harrison Co., recently decided by Section B of the Commission of Appeals, and adopted by the Supreme Court on April 18, 1923, Judge Powell, in an able opinion, has very fully discussed the question herein propounded, and in that case held that the trial court should have, under similar conditions, changed the venue of the case. The opinion of Judge Powell is an exhaustive discussion of the question and so fully presents the authorities that we think it would serve no useful purpose to attempt in this opinion to go over the same ground. Especially is this true because of the fact that the same section, Judge Powell writing the opinion, in the case of Schumaker Co. v. J.M. Dolive, approved by the Supreme Court on the 25th of April, 1923, followed the ruling in the Craig case on the question herein propounded.

We therefore recommend to the Supreme Court that the question submitted above by the Court of Civil Appeals be answered: that the plaintiff, Mrs. Ruby Henry, did not, under the facts set forth in the certificate, waive her plea of privilege, but that the trial court should have considered same and changed the venue of the case to the District Court of Van Zandt County.

The opinion of the Commission of Appeals answering certified questions adopted and ordered certified to the Court of Civil Appeals.

C.M. Cureton, Chief Justice.