Texas Cemeteries, Inc. v. Williams

459 S.W.2d 876, 1970 Tex. App. LEXIS 2310

• Court: Court of Appeals of Texas
• Decided: October 15, 1970
• Docket: No. 4933
• Status: Published

Opinion

OPINION

McDONALD, Chief Justice.

This is a venue case. Plaintiffs Williams and wife sued defendant Texas Cemeteries Inc., in Madison County for damages. Defendant filed plea of privilege to be sued in Harris County on January 24, 1970. Plaintiffs filed controverting plea on February 3, 1970.

The trial court overruled defendant’s plea of privilege. Defendant appeals on one point: “The trial court erred in holding that the controverting affidavit was timely filed.”

Defendant asserts attorney for plaintiffs received copy of the plea of privilege on January 23, 1970; filed controverting plea on February 3, 1970; that Rule 86 Texas Rules of Civil Procedure provides “If * * party desires to controvert the plea of privilege, he shall within ten \10~[ days after he or his attorney of record received the copy of the plea of privilege file a controverting plea * * and that plaintiff’s controverting plea was late by one day and not timely filed.

The transcript reflects defendants’ plea of privilege was filed with the District Clerk on January 24, 1970, and that plaintiff’s controverting plea was filed on February 3, 1970. The controverting plea was timely filed. Rule 86 TRCP provides plaintiff will file controverting plea within 10 days after receiving copy of a filed plea of privilege. If plaintiff received copy of the plea of privilege on January 23, which plea was not filed until January 24, such cannot diminish plaintiff’s time for filing controverting plea, to less than 10 days from the time the plea of privilege was actually filed.

Defendants’ point is overruled.

Affirmed.