Davis v. Russell Peek , 1922 Tex. App. LEXIS 1276 ( 1922 )

It is insisted by appellant that the judgment against him is both erroneous and void, as a matter of law, upon the grounds that: (1) The loss or misdelivery of the goods did not occur on the line of the Texas Pacific Railway, the terminal carrier, but under the undisputed evidence occurred only through and in the control and operation of the New York, New Haven Hartford Railway, the initial carrier; and (2) there was a lack of jurisdiction in the court to render judgment in favor of the plaintiffs on a cause of action growing out of the control and operation of the New York, New Haven Hartford Railway, which was a railway entirely foreign to the state of Texas, upon service of a citation or summons upon the station agent, representing the Director General, at Clarksville, Red River county, Tex., in the operation of the Texas Pacific Railway. The appellees justify the judgment upon the grounds that: (1) The Director General was sued in his capacity as such in possession of the control and operation of the New York, New Haven Hartford line of railway, as well as the Texas Pacific line of railway, and that service was had upon an agent representing the Director General; (2) the Director General entered his appearance in the suit without limiting his appearance to his capacity as being in charge of the Texas Pacific Railway; and (3) the Director General, by force and effect of his answer, voluntarily submitted himself to the jurisdiction of the court, and is bound by its judgment.

The Texas Pacific Railway being the terminal carrier, and the goods never having reached its line of railroad, it would not be, under the facts, legally liable distinctly as a railroad company for the damages sued for had the suit been brought before government control. The petition of the plaintiffs, however, set up the facts sufficiently charging and showing a cause of action to have been created by the Director General in the government control and operation of the New York, New Haven Hartford line of railway, as well as in the control and operation of the Texas Pacific line of railway. The cause of action, based as it is upon misdelivery or conversion of the goods, would be legally classed as a transitory action; and consequently the fact that the New York, New Haven Hartford Railway is a line of railway foreign to Red River county, Tex., would not render the judgment void in the capacity of control and operation of such foreign railway, provided proper jurisdiction was obtained over the person of the appellant in that respect. And we think the record does not go to show that jurisdiction was wanting to render the judgment as entered. It appears from the record that an "original answer" was filed in the court by the Director General at the return term of court after the suit was brought. Whether any complaint was made of a want or insufficiency of service of citation respecting the foreign line of railway, or whether there was a special plea or motion to dismiss on the ground of lack of jurisdiction, or whether the original answer was a restricted appearance does not appear in the record. The trial court's Judgment recites that —

"On this day, October 27, 1921, came on for trial the above entitled and numbered cause. Then came the plaintiff, Russell Peek, in person and by their attorney, and the defendant James C. Davis, Federal Agent under the Transportation Act of 1920, by his duly and legally authorized attorney, and announced ready for trial."

If, then, the original defendant, being sued in two capacities, appeared and answered generally, as the record purports to show, to the merits of the case, neither he nor the substituted defendant can object to the Jurisdiction over his person because a citation, or valid citation, was not issued and served upon him. Watson v. Baker, 67 Tex. 48,2 S.W. 375. A defendant, voluntarily and without objection answering to the merits, waives jurisdiction over his person when he answers to the merits of the suit as alleged. Douglas v. Baker, 79 Tex. 499, 15 S.W. 801. It must be assumed in support of the trial court's judgment, in the absence, as here, of the original answer itself and any complaint in the trial court of lack of jurisdiction that the "original answer" was, as it legally purports to be (Richardson v. Wells, 3 Tex. 227) a defensive pleading to the merits of the case as alleged in the plaintiffs' petition. Waiver of jurisdiction over the person is primarily a question of fact. This is involved in the court's judgment, a finding of that fact, also the pleading of appellant as the substituted defendant in adopting "the answer of defendants heretofore filed" would seem, as worded, to have recognized the former appearance of the Director General as having been in the capacity of operating both railways. A defendant who files without compulsion any defensive pleading makes such an appearance, under the rule in this state, as gives the court jurisdiction over his person as fully as would the proper issuance and service of citation within this state. York v. State, 73 Tex. 651, 11 S.W. 869; Id., 137 U.S. 15, 11 S. Ct. 9, 34 L. Ed. 604.

The judgment is affirmed.