Annie CRAWFORD, Individually, and as Independent Executrix and Beneficiary, Appellant, v. Rose MODOS et al., Appellees
No. 7224
Court of Civil Appeals of Texas, Beaumont
March 11, 1971
465 S.W.2d 220
Defendant‘s brief contained no points of error complaining of the action of the trial court on the ground that proof of non-compliance through that use of Section 30 would not overcome defendant‘s right to a transfer under the plea of privilege. This matter was raised by supplemental brief at the invitation of Justice Keith at the time of oral argument. This new concept as to proof of a prima facie cause of action in a venue case is set forth at length in the majority opinion in Southwestern Transfer Company v. Slay, 455 S.W.2d 352 (Tex. Civ.App.—Beaumont, 1970, no writ). I dissented in that case, and here again call attention to my contentions in that regard. Assuming, arguendo, that the majority was correct in a “res ipsa loquitur case,” I feel it would still have no application to the present situation. The Legislature, under the Act in Section 30, has specifically provided a method of proving non-compliance. In the eyes of the majority, the Legislature made one fatal mistake, and that was the usе of the term “prima facie evidence.” The first part of the paragraph from Section 30 quoted by the majority is as follows:
“In any prosecution, action, suit or proceeding before any of the several courts of this state based upon or arising out of or under the provisions of this Act, * * *”
That provision is, without question, broad enough to include a plea of privilege, and plaintiffs were required to do no more than is set forth in Section 30 to prove non-cоmpliance. In my humble opinion, a reasonable construction of the use of the term “prima facie evidence” in Section 30 means that the fact of non-compliance is established by the certificate unless the defendant offers evidence to the contrary to raise a question of fact. This the defendant made no effort to do in the case before us.
James E. Faulkner, Coldsprings, for appellees.
ON APPELLEES’ MOTION FOR REHEARING
KEITH, Justice.
Appellees did not file a brief in this cause nor otherwise participate in the аppeal until they filed their motion for rehearing. In this belated appearance, appellees now complain bitterly that we erred in taking jurisdiction of the appeal and in our factual résumé of the case. Since this is still аnother instance in which we have heard from an appellee only after the case has been decided, we now withdraw the prior opinion and substitute this in lieu thereof so that we may have a vehicle by which we may express our disapproval of this type of appellate practice.*
We turn first to the suggestion of lack of jurisdiction since the jurisdiction of this court may be raised and decided at any stage of the proceeding, St. Louis Southwestern Ry. Co. of Texas v. Hall, 98 Tex. 480, 85 S.W. 786, 787 (1905), and a court without jurisdiction cannot render a valid judgment. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1084 (1926). But, in making this late suggestion, the appellees have completely ignored the provisions of
“Motions to dismiss for want of jurisdiction to try the case and for suсh defects as defeat the jurisdiction in the particular case and cannot be waived shall also be made, filed and docketed at said time [within thirty days after the filing of the transcript in the Court of Civil Appeals as provided in Rule 404]; provided, however, if made afterwards they may be entertained by the court upon such terms as the court may deem just and proper.”
The course of action pursued by appellees is not to be encouraged by our taking a liberal view of the record which is offered in support of the contention now advanced. Nevertheless, our review of the record convinces us that the point is utterly untenable.
Appellees assert that we lacked jurisdictiоn to pass upon the appeal because the transcript and statement of facts were not
Our record conclusively establishes that the notice of appeаl and appeal bond were both timely filed and the record was deposited in the mails addressed to this court on November 25, 1970, as shown by the postmark upon the envelope. The clerk‘s office was closed during the Thanksgiving Holidays and the record was filed upon Monday, November 30, 1970. Our clerk properly filed the record under the provisions of
Appellees assert that we erred in our factual résumé of the case made the basis of our opinion. The facts which we recited are not disputed by references to the record, but by bold argumentative statements which we find lаck support in the record. In so challenging our decision, appellees have failed to appreciate the sanctions of
“Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.”
Appellees filed no brief, consequently, there was no challenge of the statements contained in appellant‘s brief; and wе were authorized to accept as correct the statements contained in appellant‘s brief as to the facts and the record. Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App.-San Antonio, 1949, error ref.); Leavell v. Lincoln County Mut. Fire Ins. Co., 243 S.W. 2d 223, 225 (Tex.Civ.App.----Dallas, 1951, no writ); Zuniga v. Zuniga, 244 S.W.2d 270 (Tex.Civ.App.--San Antonio, 1951, no writ); Hammerstein v. Hammerstein, 269 S.W.2d 591, 592 (Tex.Civ.App.-Fort Worth, 1954, no writ); Rancher v. Franks, 269 S.W.2d 926, 927 (Tex.Civ.App.-Fort Worth, 1954, no writ); Bailey v. Parker, 305 S.W.2d 398, 399 (Tex.Civ.App.-Amarillo, 1957, no writ); Clement v. Frantz, 333 S.W.2d 190, 191 (Tex.Civ.App.---Amarillo, 1960, no writ); Works v. Wyche, 344 S.W.2d 193, 194 (Tex. Civ.App.---Dallas, 1961, error ref. n. r. e.); Coates v. Coates, 355 S.W.2d 260, 261 (Tex.Civ.App.-Eastland, 1962, no writ); McBee v. Moody, 358 S.W.2d 215 (Tex. Civ.App.-Eastland, 1962, no writ); Traweek v. Shields, 380 S. W.2d 131, 133 (Tex.Civ.App.-Tyler, 1964, no writ); American Casualty and Life Ins. Co. v. Boyd, 394 S.W.2d 685, 689 (Tex.Civ.App.-Tyler, 1965, no writ); Boucher v. City Paint & Supply, Inc., 398 S.W.2d 352, 357 (Tex.Civ.App.-Tyler, 1966, no writ); Cuellar v. Cuellаr, 406 S.W.2d 510, 511 (Tex.Civ.App.-Corpus Christi, 1966, no writ); Calhoun v. Padgett, 409 S.W.2d 890, 891 (Tex.Civ. App.-Tyler, 1966, no writ); Agricultural Workers Mut. Auto Ins. Co. v. Dawson, 424 S.W.2d 643 (Tex.Civ.App.-Tyler, 1968, no writ); King v. Ivans, 429 S.W.2d 646 (Tex. Civ.App.----Tyler, 1968, no writ); Garza v. Salinas, 434 S.W.2d 153, 154 (Tex.Civ.App.---San Antonio, 1968, no writ); Lattin v. Martell, 452 S.W.2d 780, 781 (Tex.Civ. App.-Beaumont, 1970, no writ).
Having prevailed in the trial court, counsel for appellees owed the duty to his clients, the trial court, and to this court of presenting the case in a manner which would protect his clients’ rights. By failing to file a brief or participate in the appeal before the release of the opinion of the court, the counsel waived his clients’ right to challenge appellant‘s factual statement as to the contents of the record. We are
If counsel desired to participate in the decision-making process of this court, there were clearly marked guidelines laid down by our Supreme Court governing such participation. But, counsel, remaining silent when he should have spoken, has saved his efforts until after our opinion was released. This is, at best, a most ineffective exercise of the rights guaranteed by our rules of civil procedure.
Being of the opinion that our original determination was correct and that we made a proper disposition of the appeal, we now overrule appellees’ motion for rehearing and again release our original opinion оn the merits.
Opinion on the Merits
Appellees sued in trespass to try title to recover certain lands situated in San Jacinto County, and other counties in the State. Appellant duly filed her plea of privilege to be sued in Williamson County, and her counsel delivered a copy of the plea to appellees’ counsel on March 23, 1970, the same date the plea was filed with the District Clerk. Appellees did not file their controverting plea until April 21, 1970. The trial court overruled appellant‘s motion to strike the controverting plea and entered judgment overruling the plea of privilege.
In overruling the motion to strike the controverting plea, the trial court included the following language in the order:
“[The cоurt] finds that such motion is not well taken for the reason that said plaintiffs filed their plea controverting defendant‘s plea of privilege in time in that defendant filed her plea of privilege on March 23, 1970, and plaintiffs had until ten days after aрpearance day, the beginning of the next term of court, in which to file their controverting affidavit and plaintiffs filed their plea controverting defendant‘s plea of privilege prior to such * * *”
In the same order, the trial court ovеrruled the plea of privilege, from which action this appeal is taken.
The trial court erred in overruling the plea of privilege since the controverting plea was not filed within ten days after the filing of the plea of privilege as provided in
While appellees’ suit was brought in the nature of a trespass to try title action, such does not alter the result which we reach. The provisions of
The trial court having committed error in overruling the plеa of privilege, the judgment below is reversed and the cause is now remanded with instructions to enter an order sustaining the appellant‘s plea of
Reversed and remanded with instructions.