Guerra De Chapa v. Cox

Court of Appeals of Texas

Guerra De Chapa v. Cox

271 S.W.2d 486, 1954 Tex. App. LEXIS 2108

CourtCourt of Appeals of Texas

DecidedSeptember 22, 1954

Docket12735

StatusPublished

Cited by5 cases

This text of 271 S.W.2d 486 (Guerra De Chapa v. Cox) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Guerra De Chapa v. Cox, 271 S.W.2d 486, 1954 Tex. App. LEXIS 2108 (Tex. Ct. App. 1954).

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Opinion

POPE, Justice.

This appeal concerns the procedure applicable to a hearing, on a plea of privilege, wherein the court held that the defendant by answering waived a plea of privilege which was filed later.' Rule 84, Texas Rules of Civil Procedure.

Plaintiff, Beulah G. Cox, sued the estate of Ponciano Chapa, Sr., for damages for the death of her husband, caused by an automobile collision between Mr. Cox and Mr. Chapa, also .subsequently deceased. She named as the defendant in her suit Jacob G. Hornberger, Administrator of the Estate of Ponciano Chapa, Sr. The administrator timely filed an answer in the nature of a general denial. Hornberger was then removed as administrator and Chapa’s widow, Beatriz Guerra de Chapa, was named as administratrix. The former administrator called this to the attention of the court by a written motion. On January 27, 1954, Beatriz Guerra de Chapa, as ad-ministratrix, filed a plea of privilege to be sued in Jim Hogg County. The plea of privilege was filed five months after the former administrator made an appearance by way of general denial. Leave of court to withdraw the general answer was never sought nor granted by the trial court. However, the plaintiff did not file a controverting affidavit until March 5th, far beyond the ten days required by Rule 86, T.R.C.P.

The plaintiff made a motion to strike the plea of privilege, on the grounds that the general appearance constituted a waiver of the privilege, and the defendant made a motion to strike the controverting affidavit by reason of the late filing. The’court held that the defendant by answering made an appearance, and that the plea of privilege filed several months thereafter was waived as a matter of law. This was a correct ruling. Reed v. Garlington, Tex.Civ.App., 233 S.W.2d 185; Leyendecker v. Harlow, Tex.Civ.App., 189 S.W.2d 706.

The order of the trial court is affirmed.

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POPE, Justice.

This appeal concerns the procedure applicable to a hearing, on a plea of privilege, wherein the court held that the defendant by answering waived a plea of privilege which was filed later.' Rule 84, Texas Rules of Civil Procedure.

Plaintiff, Beulah G. Cox, sued the estate of Ponciano Chapa, Sr., for damages for the death of her husband, caused by an automobile collision between Mr. Cox and Mr. Chapa, also .subsequently deceased. She named as the defendant in her suit Jacob G. Hornberger, Administrator of the Estate of Ponciano Chapa, Sr. The administrator timely filed an answer in the nature of a general denial. Hornberger was then removed as administrator and Chapa’s widow, Beatriz Guerra de Chapa, was named as administratrix. The former administrator called this to the attention of the court by a written motion. On January 27, 1954, Beatriz Guerra de Chapa, as ad-ministratrix, filed a plea of privilege to be sued in Jim Hogg County. The plea of privilege was filed five months after the former administrator made an appearance by way of general denial. Leave of court to withdraw the general answer was never sought nor granted by the trial court. However, the plaintiff did not file a controverting affidavit until March 5th, far beyond the ten days required by Rule 86, T.R.C.P.

The plaintiff made a motion to strike the plea of privilege, on the grounds that the general appearance constituted a waiver of the privilege, and the defendant made a motion to strike the controverting affidavit by reason of the late filing. The’court held that the defendant by answering made an appearance, and that the plea of privilege filed several months thereafter was waived as a matter of law. This was a correct ruling. Reed v. Garlington, Tex.Civ.App., 233 S.W.2d 185; Leyendecker v. Harlow, Tex.Civ.App., 189 S.W.2d 706.

The order of the trial court is affirmed.

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Bluebook (online)

271 S.W.2d 486, 1954 Tex. App. LEXIS 2108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guerra-de-chapa-v-cox-texapp-1954.

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