Atchison, Topeka & Santa Fe Railway Co. v. Forbis , 35 Tex. Civ. App. 255 ( 1904 )

It appears from the petition that plaintiff below resided in Dickens County; that appellant, one of the defendants, was a nonresident corporation, operating a line of railway between Woodard, Okla., and Kansas City, Mo., with an agent at El Paso, Texas; and that the other defendant, the Southern Kansas Railway Company of Texas, was a Texas corporation, operating a line of railway between Washburn, Texas, and Woodard, Okla., with an agent at Panhandle, Carson County, Texas. It further appears therefrom that the Fort Worth Denver City Railway Company had an agent at Childress, Texas, and operated a line of railway between that point, via Giles, the origin of the cattle shipment in question, to Washburn, Texas. This company, however, was not sued, and no negligence was charged against it, but it was alleged that the other companies were partners, or that the foreign company owned and controlled the Texas corporation, and that the three formed "a continuous line of railroad from Childress, Texas, by way of Giles, Texas, to Kansas City, Mo."

The plea of privilege to be sued in some county other than Childress, filed by the Southern Kansas Railway Company of Texas and adopted by the Atchison, Topeka Santa Fe, contained a denial of every fact that would have warranted the institution of this suit in that county.

It seems quite clear, therefore, that the court erred in overruling the plea of privilege. There is nothing in the Act of 1899, page 214, to justify this ruling. In providing that "suit for loss or damages * * * may be brought against any one or all of such railroad corporations * * * in any county in which either (any) of such railroads extend(s) or is operated," the Legislature did not intend to authorize a suit to be brought, as was done in this instance, against two railway companies in a county in which the railroad of neither extends or is operated, that is, in a county where the railroad of a third carrier which is not sued or in any manner liable for the damages claimed extends or is operated. At least the case of Texas P. Ry. Co. v. Lynch, 75 S.W. Rep., 486, so holds.

York v. State, 73 Tex. 651, and that line of cases, which are cited to sustain the ruling, are not in point. The question involved is one of venue, and not of jurisdiction. While, as held in the cases cited, a foreign corporation over which our courts can not obtain jurisdiction to render a personal judgment waives the jurisdictional defense by appearing in our courts for the sole purpose of urging that defense, such corporation is as much entitled to plead its privilege of being sued in the proper county as any other party defendant. St. Louis I.M. S. Ry. Co. v. White, 1 Texas Law Journal, 613, 76 S.W. Rep., 947; Texas P. Ry. Co. v. Edmisson, 52 S.W. Rep., 635. Indeed, this privilege presupposes that the party pleading it is amenable to the general jurisdiction of the court. The question is not whether the court has jurisdiction over the person of the defendant, but whether the court has jurisdiction, against the objection of such defendant, though duly cited, to try the issue in the county in which suit is brought.

The judgment against appellant is reversed, and the suit abated on its plea of privilege, without prejudice to appellee's right to bring a new suit against it, but the judgment in favor of the other defendant, not being appealed from, will not be disturbed.

Reversed and dismissed in part and affirmed in part.