Chapman v. Gibson

This suit was instituted by appellant on November 3, 1924, against appellee for the sum of $500, alleged to be due by him as the owner of 10 shares of an insolvent bank in Rockport. The suit was instituted in Aransas county, in which the bank operated and failed; it being alleged that appellee resided in Tarrant county. On January 6, 1925, on the first day of the first term of the county court after the suit was filed, appellee filed a plea of privilege to be sued in Webb county. On the same day appellant filed an exception to the plea of privilege "because said plea requests this court to transfer this cause to the district court of Webb county, Tex., without giving any reason why the same ought to be transferred to said court." No controverting answer was filed. On the same day, January 6, 1925, the court held the exception well taken, overruled the plea of privilege, and rendered Judgment against appellee for $500, with interest. Appellant sought to collect that judgment by execution and writ of garnishment; the prosecution of the last-named writ being restrained by the district court of Webb county June 2, 1927. On July 18, 1927, Charles O. Austin, successor as banking commissioner to J. L. Chapman, moved the county court of Aransas county to set aside its orders and Judgment of January 6, 1925, and prayed that court in addition to enter an order transferring the cause to Webb county. The motion was in all things granted, and the cause transferred to Webb county. The transcript of the proceedings of the county court of Aransas county was filed in the district court of Webb county on August 8, 1927, and on October 17, 1927, appellee filed an answer to the petition of appellant, and on same date filed a motion to dismiss the cause for want of prosecution. The grounds were, in substance, that appellant had failed to promptly have the case transferred, although the county court had lost all jurisdiction except to transfer the case to Webb county, and, as all the acts in connection with the cause in Aransas county, after the plea of privilege was filed, were void, appellant abandoned the prosecution of his cause. There was no complaint of any failure to prosecute the cause after it was transferred.

Undoubtedly under the law the county court could legally take no action, after filing of the plea of privilege, in the absence of a controverting affidavit, except transfer the cause to Webb county. Craig v. Pittman Harrison (Tex.Com.App.) 250 S.W. 667; Green v. Brown (Tex.Civ.App.) 271 S.W. 394; Schumacher v. Dolive, 112 Tex. 564,250 S.W. 673. However, the void acts of the court induced by appellant did not evince an abandonment of the prosecution if they could be invoked to show a want of prosecution, which we do not hold. The want of action at the time of or just before the dismissal would control on the question of abandonment of the prosecution. The case had been transferred to Webb county, was regularly on the docket, had been answered by appellee, and seems to have been awaiting its call on the docket. The district court was holding its first term, and the cause was dismissed on the first day of the term. Appellant could have done no more in the district court than he had done, and for that matter had been extravagantly energetic in his misdirected efforts to forward his prosecution in the county court. Unreasonable effort or even effort not sanctioned by law cannot be made the basis of a dismissal for want of prosecution, but, if this could have been done in the county court at any time, it could not be legally done in the district court after appellant had seen the error of his ways and moved back into "the straight and narrow path" marked out by the statutes. None of the authorities cited by appellee are applicable to this case. In each one of them no action whatever was taken after filing, and the courts held that such filing of suit did not interrupt the running of statutes of limitation. That is very different from continued action which was ill-advised and misdirected.

As both parties treat the matter of transfer from a county to a district court as legal and proper, we will so deem it.

The judgment is reversed, and the cause remanded.