206 S.W. 921 | Tex. | 1918
Lead Opinion
The suit was one by Stevens, a non-resident, for damages for personal injuries occurring in another State against the Atchison, Topeka Santa Fe Railway Company, a foreign corporation. It was filed in the District Court of El Paso County and was tried there, with a judgment for the plaintiff as the result
For service upon the defendant the plaintiff relied upon the due delivery of citation to W.R Brown, R.F. Goering, Charles Watlington, and F.C. Fox, described as its agents. Each as an amicus curiae by affidavit denied that he was such an agent. The court on hearing held the contrary and ordered the defendant to appear and answer Thereupon *268 the defendant filed a plea of privilege and to the venue, denying that it was doing business in El Paso County or that it had any agent residing there, but admitting for the purposes of the plea that it was doing business in the Counties of Potter, Hemphill, Galveston, Johnson and Cooke, and contending that it was suable in one of those counties if at all. The plea was overruled, and later the defendant answered on the merits.
An extended argument has been presented by the railway company upon the question of the trial court's jurisdiction under the service shown. In the state of the record, that is an immaterial question. A special appearance is unknown to our practice. The filing by a defendant of any defensive pleading, though it be only for the purpose of challenging the jurisdiction of the court, constitutes an appearance and a submission to the jurisdiction of the forum. York v. State,
The real question in the case is one of venue. For the railway company to have been properly suable in El Paso County it was necessary that it have an agency or representative in that county. Under its plea it was shown not to have had an agency or representative there unless the Rio Grande, El Paso Santa Fe Railroad Company, a Texas corporation having its principal office in El Paso, and being a part of what is known as the Santa Fe system, with the principal part of its capital stock owned by the Atchison company, the defendant, is to be regarded as its representative and certain persons who were agents of that company in El Paso are to be treated as its agents. Under a similar state of facts it was held by this court in Buie v. Railway Co.,
The honorable Court of Civil Appeals was of the view that without express statement by this court the Buie case should not be regarded as overruled as applied to purely a question of venue of a suit against a foreign corporation, since the immediate question in that case was not one of venue, — a matter of State decision, but one of jurisdiction, — a Federal question. The United States Supreme Court in the Peterson case held, however, under a state of facts practically identical with those in the Buie case and in the present case, that the auxiliary corporation is not to be treated as the representative of the parent foreign corporation, nor are the agents of the former to be regarded as the agents of the latter. This was exactly the converse of the holding upon which the decision in the Buie case was rested. If the holding in the Buie *269 case was incorrect as applied to jurisdiction over a foreign corporation, it was equally so as applied to the venue of a suit against such a corporation. As between the two questions we think it immaterial to which it related. The holding itself was overturned by the decision in the Peterson case. That decision concludes the question here.
The Court of Civil Appeals reversed the judgment of the District Court and remanded the cause, but upon another ground. Its judgment of reversal will accordingly be affirmed and the cause remanded to the District Court with the direction to transfer it to the District Court of one of the counties named in the defendant's plea of privilege, as the plaintiff may elect.
Concurrence Opinion
I concur, heartily, in the foregoing opinion, excepting only the final clause thereof, "as the plaintiff may elect." That quoted language probably is harmless as applied to the case at bar inasmuch as defendants, in their plea of privilege, ask to have the cause transferred to any one of five enumerated counties, as plaintiff may elect; but, in so far as it may be understood or applied in practice as enunciating a general rule, it constitutes, it seems to me, an unwarranted invasion by this court of the province and function of the trial court as defined in Revised Statutes, article 1832, which declares "If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer such cause to the court having jurisdiction of the person of the defendant therein."
The effect of that statute as applied to cases of this character, wherein a railroad company legally is suable in more than one forum, is, I think, to confer upon the trial court, rather than upon any party to the litigation, the right to determine to what court the cause shall be transferred; and, if that be correct, the matter is one which this court has no power or authority to control.
It is true that thus giving to the plaintiff the option of choosing the forum to which the cause is to be transferred has the practical effect of preserving his original right of selecting the tribunal in which his cause is to be tried, and that argument, if addressed to the Legislature, certainly would have force; but our above mentioned transfer statute seems to me to treat the matter differently, and, to assume that, having filed his cause in an improper tribunal, the plaintiff waived his statutory privilege of choosing the forum; and thenceforth the analogies carried by our other change of venue statutes, Revised Statutes, articles 1911, 1912, 1913, 1914, and Penal Code, articles 626, 627, 628, 629, 632, wherein, except as otherwise stipulated, the discretion and option of selecting the new forum to which the cause is to be transferred devolves upon the trial court, are more applicable.
Reversed and remanded with directions. *270