Caughan v. Urquhart , 265 S.W. 1097 ( 1924 )

I cannot agree to the reversal of this judgment, on the ground that the plea of privilege should have been sustained. In the plaintiffs' petition a good cause of action was stated against the defendant, who resided in Hunt county, where the suit was filed. If that defendant made no answer, a valid judgment might have been rendered against him by default. If, on a trial, the plaintiff had proved the facts he alleged, a similar judgment might have been rendered against the defendant on the evidence. It also appears from the cause of action stated by the plaintiffs that the resident defendant was properly joined in a suit against the nonresident defendants. The liability as pleaded was both joint and several. It is true that the right of a plaintiff to join a nonresident defendant with one residing in the county where the suit is filed, for the purpose of conferring jurisdiction in that county, is not to be determined by the averments of the plaintiff in stating his cause of action. The nonresident defendant may deny the plaintiff's averments, stating the place of residence of any or all of the defendants; or he may admit the residence as alleged, and plead that the resident defendant was not a proper party to the suit, or that he was made a party defendant for the purpose of giving jurisdiction to a court in the county where the suit is filed. The issues thus raised must be tried as any other questions of fact involved in the controversy. If the plea of privilege is properly verified, it is, under the present statute, prima facie proof of what the denial implies. If not controverted by the plaintiff both by pleading and proof, the plea is sufficient to require the trial court to transfer the case. In this case the plea of privilege was merely in the statutory form. It alleged nothing by way of confession and avoidance.

The question upon which I differ with the majority is: What did that plea put in issue? My associates hold that it put in issue not only the fact that Caughan, one of the defendants, resided in Hunt county, but was tantamount to an averment that he was not a proper party to the suit, and, further that he was made a party defendant for the purpose of conferring jurisdiction on a court in the county where the suit was filed. My view of the law is that it put in issue only the averment of the plaintiff that Caughan resided in Hunt county, where the suit was filed. If the nonresident defendants desired to question the propriety of the joinder of Caughan in the suit, and wished to prove that he was joined for the purpose of conferring jurisdiction on the county court of Hunt county, they should have specifically pleaded those facts by way of confession and avoidance. That view of the law is, I think, sustained by the following cases: Pearce v. Wallis, Landes Co.,58 Tex. Civ. App. 315, 124 S.W. 496; Drummond v. Allen National Bank (Tex.Civ.App.) 152 S.W. 739; Kirkpatrick v. San Angelo National Bank (Tex.Civ.App.) 184 S.W. 362. That rule is also in harmony with our established rules of pleading. A plea of privilege is, in legal effect, a plea in abatement, and such pleas are required to be specific and certain. They will be construed as admitting every fact which they do not in terms, or by necessary implication, deny. Under the rule prevailing prior to the enactment of what is now article 1903, a party pleading his privilege to be sued in the county of his residence, was required to negative every appropriate exception to the statute. That rule was one of common-law pleading. The new statute did no more than authorize a defendant to abbreviate his pleading, and dispensed with the necessity of specially denying every appropriate exception, and to shift the burden of proof when the statutory plea was properly verified. In other words, under the present statute a formal plea of privilege raises only such issues as were raised by the special denials under the former law. Facts which were then required to be pleaded by way of confession and avoidance must be so pleaded now. Under the old statute, a special pleading in this case, which simply denied that any of the defendants in this suit resided in Hunt county, would have presented only that particular issue. It would have been sufficient to notify the plaintiff only that he would, on a trial, be called upon to sustain the averment that such defendant did reside in Hunt county. It would not have notified him that the pleader intended to prove a misjoinder of parties, or that one was joined for the purpose of conferring jurisdiction in Hunt county. In this case it is conceded that Caughan, one of the actual defendants, did reside in Hunt county. That being the only issue presented in the appellants' plea of privilege, the trial court, in my judgment, properly refused to sustain the plea of privilege.