Barrett v. Cheatham

281 S.W.2d 761, 1955 Tex. App. LEXIS 2012

• Court: Court of Appeals of Texas
• Decided: July 25, 1955
• Docket: 3285
• Status: Published

Opinions

TIREY, Justice.

This is an appeal from an interlocutory order of the District Court of Brazos County overruling appellant’s plea of privilege to be sued in Madison County, the county of his residence. The judgment is assailed substantially on eight points. Owing to the fact that we believe that appellant waived his plea of privilege, each of the eight points assailing the judgment pass out of the case for reasons hereinafter briefly noted.

James O. Cheatham, of Bryan, filed his original petition in the District Court of Brazos County on January 25, 1955. In this petition he made parties defendant the appellant Barrett, of Madison County, and W. A. Haveron and Alton Hensarling and K. R. Menefee, each of the last three being resident citizens of Brazos County. W. T. Barrett seasonably filed his plea of privilege pursuant to T.R.C.P. 86, on February 2, 1955. Plaintiff Cheatham seasonably filed his controverting affidavit to the plea of privilege on February 3, 1955. On February 5, 1955, defendant Barrett filed his motion for costs. This motion in effect asked the court that Cheatham be required to give security for all costs. He prayed “that said rule for and security for costs be required and that this cause be dismissed on failure of the plaintiff to so give said security.” On the 9th day of February, 1955, the court granted appellant’s motion for costs, and in the order we find this recital: “It is ordered, adjudged and decreed by the court that the said James O. Cheatham give, make, execute and file herein, a good and sufficient bond, with at least two sureties, to be approved by the Clerk of this Court, for the payment of all costs accruing herein.” The order overruling the plea of privilege was entered on March 8, 1955.

In Brown v. Reed, Tex.Civ.App., 62 S.W. 73, no writ history, our Galveston Court of Civil Appeals held: “We are of opinion the plea was correctly held as abandoned. The defendant in the justice court, by ruling the plaintiff for costs, invoked the general jurisdiction of the court, and thereby secured a general order in the case.”

In Torno v. Cochran, Tex.Civ.App., 201 S.W. 735, no writ history, we find this statement by our San Antonio Court of Civil Appeals: “It is contended by appellant that the act of appellee in invoking the rule for costs was a waiver of the plea of privilege. It is so held in the case of Brown v. Reed [Tex.Civ.App.], 62 S.W. 73, and we will follow the decision, although as an original proposition we might not have so held.”

In Citizens State Bank of Wheeler v. First Nat. Bank of Mineral Wells, Tex.Civ.App., 293 S.W. 913, no writ history, our Eastland Court of Civil Appeals gave its approval of the doctrine announced in the foregoing cases, in this language: “In the Torno Case, after filing a plea of privilege, the defendant came into court and asked a rule for costs. The effect of that was to call upon the court to require the plaintiff to file a cost bond securing the costs to accrue in that court, and he thereby invoked the jurisdiction of the court in a matter other than the mere plea of privilege.” The case was distinguished, and was reversed and remanded on other grounds not pertinent here, with instructions to transfer the cause to the District Court of Wheeler County. See also Texas Digest, Vol. 30, Pleading,1‘®==>110, and cases there collated.

In Swift & Co. v. Duckett, Tex.Civ.App., 13 S.W.2d 237, no writ history, point 2 on page 239, the Amarillo court followed and applied the doctrine announced in Brown v. Reed and Torno v. Cochran, supra. The rule here cited and followed, according to our view, is not in conflict with Gulf Ref. Co. v. Needham, Tex.Civ.App., 233 S.W.2d 919, no writ history, opinion by the East-land court; nor of the opinion of this court in Anderson v. Southwestern Presbyterian Home and School for Orphans, Tex.Civ.App., 248 S.W.2d 775, application for writ dismissed. We think the views here expressed are in accord with the pronouncement of our Supreme Court in St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75.

Since, under the decisions here cited, appellant having exercised his right to> invoke the rule for costs, he has by so doing, invoked the general jurisdiction of the District Court of Brazos County, and has thereby submitted himself to its jurisdiction and has waived the right to be sued in the county of his residence. As we have before stated, because of the views here expressed, all other venue questions pass out of the case and the judgment of the district court overruling appellant’s plea of privilege to be sued in the county of his residence, is in all things affirmed.