Sitton v. Cyrus W. Scott Mfg. Co.

67 S.W.2d 415

• Court: Court of Appeals of Texas
• Decided: January 4, 1934
• Docket: No. 2915.
• Status: Published

Opinion

HIGGINS, Justice.

Tbis suit originated in a justice court of Dallas county. It was brought by appellee against appellant upon certain notes. Tbe defendant filed plea of privilege in tbe form prescribed 'by tbe statute claiming tbe right to be sued in Ward county where be resided.

Appellee excepted generally to tbe plea and specially upon tbe ground that it did not allege there was an elected and qualified justice of tbe peace or an acting justice of tbe peace in Ward county qualified to try tbe cause. The exceptions were sustained and judgment rendered against appellant upon tbe merits. In due time, tbe cause was by certiorari removed to county court at law, No. 2, of Dallas county. There appellant filed an amended plea of privilege in tbe statutory form and additional averments meeting tbe supposed defects in tbe original plea as pointed out in said special exception. In the county court at law tbe same exceptions were sustained to tbe amended plea. Thereupon judgment upon tbe merits was again rendered against tbe defendant from which be appeals. No aflidavit was filed either in tbe justice court or county court at law controverting tbe plea of privilege.

This court has heretofore expressed its doubt as to tbe correctness of certain decisions bolding that in justice court cases a plea of privilege, in tbe form prescribed by statute, is defective unless it contains additional averments showing tbe precinct residence in tbe county where tbe defendant resides. Mueller-Huber Grain Co. v. Heid Bros. (Tex. Civ. App.) 58 S.W.(2d) 198.

But it is not necessary to here rule in conflict with those cases for it is settled that defective pleas of privilege are amendable in tbe county court upon appeal from a justice court. Mueller-Huber Grain Co. v. Heid Bros., supra; Lillie v. Globe Printing Co. (Tex. Civ. App.) 6 S.W.(2d) 444; Cobb v. H. C. Burt & Co. (Tex. Civ. App.) 241 S. W. 185.

Tbe plea in tbis case was amended in tbe county court at law and was in no wise de-murrable. Tbe court erred in sustaining tbe exceptions thereto.

Reversed and judgment bere rendered ordering tbe venue changed to justice court of precinct No. 4, Ward county, Tex., presided over by Hon. E. J. Beckham, Pyote, Tex.