Denby Truck Co. v. Thompson , 248 S.W. 427 ( 1923 )

Roy Thompson and wife brought this suit against T. L. Camp and Edwin Hobby, partners, doing business in the name of the Denby Truck Company, of Texas, to recover damages for the wrongful taking by defendants of an automobile truck from plaintiffs' possession. It was alleged that defendants had a chattel mortgage on the truck, but before the maturity of their indebtedness, in violation of plaintiffs' rights, took possession of the same without plaintiffs' consent; that plaintiffs later recovered possession, when defendants again wrongfully took said truck by levy of sequestration, issued out of a suit brought by defendants against plaintiff Roy Thompson; that such trespasses were committed in Deaf Smith county, where this suit was brought.

Defendants filed pleas of privilege, regular under the statute, to be sued in Dallas county, where they resided. Plaintiffs filed a controverting affidavit, in which they repeated the statement of their petition, that the suit was for damages for trespasses committed in Deaf Smith county. The court noted an order on the controverting affidavit, setting a hearing thereon for November 17, 1921. On November 29th, judgment was rendered without further appearance of defendants overruling the plea of privilege and on the merits for the plaintiff Roy Thompson for the recovery of the sum of $2,700. This judgment recited that the defendants were "duly served with copy of such controverting affidavit to said plea of privilege and the notation of the court thereon for more than ten days before same was heard." No other evidence of service of such notice appears in the record.

The service of notice on the defendants, of the filing of the controverting affidavit, and the order of the court setting the same down for hearing, required by article 1903, Revised Statutes, is jurisdictional. Brooks v. Wichita Mill Elevator Co. (Tex. Civ. App.) 211 S.W. 288; Craig, Sheriff, v. Pittman (Tex. Civ. App.)234 S.W. 1112. It has been held that a compliance with this provision for notice requires the issuance and service of regular judicial process in the manner provided by the general law applicable to such matters. McGhee v. Maxey (Tex. Civ. App.) 230 S.W. 735. See, also, All bright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498, 55 S.E. 251, 115 Am. St. Rep. 108; R.C.L. vol. 21, pp. 1265 and 1315; Standard Enc. of Proc. vol. 20, p. 663. And that article 2119 of the statutes furnishes the particular provision of the law as to the manner of issuing, serving and returning such process. Doak v. Biggs (Tex. Civ. App.) 235 S.W. 959. These cases further hold that on an appeal from a judgment overruling the plea of privilege, rendered on such a hearing, without the appearance of the defendants, the record must, in order to sustain the judgment, affirmatively show proper service of the notice above provided for, and that in such case there is no presumption of service, "even though the judgment recites due service." Doak v. Biggs, supra. The application of these propositions to the facts of this case requires a reversal of the judgment.

The facts stated in the controverting affidavit are sufficient to maintain the venue in Deaf Smith county. Focke v. Blum, 82 Tex. 436,17 S.W. 770; Perry v. Stephens, 77 Tex. 246, 13 S.W. 984; Conner v. Saunders, 9 Tex. Civ. App. 56, 29 S.W. 1140.

Reversed and remanded.