119 S.W.2d 1089 | Tex. App. | 1938
J. L. Parker, as receiver for H. H. Hardin, brought this suit against J. R. Fielder, a resident of Taylor County, and F. L. Freeland and Frank Sloan, Sheriff and Deputy Sheriff, respectively, of Stephens County, residents, of course, of said County, to enjoin an advertised sale of land in Stephens County, levied upon under an execution against Hardin's former receiver, issued out of the District Court of Taylor County, following a final judgment for debt. It was alleged substantially that the receivership suit was pending in the District Court of Erath County and that the land about to be sold under the process aforesaid was in the legal custody of the plaintiff in his said capacity as receiver. The style and number of the receivership suit was W. J. Oxford v. H. H. Hardin et al., No. 6530, and the style and number of the instant suit was J. L. Parker, Receiver, v. J. R. Fielder et al., No. 7114. Each defendant filed a plea of privilege — Fielder to be sued in Taylor County, and Freeland and Sloan to be sued in Stephens County. Each such plea was in compliance with the provisions of R.S. 1925, Art. 2007. No controverting pleas were filed by plaintiff. Plaintiff excepted to the several pleas of privilege and the exceptions were sustained; the judgment declaring the conclusion of the court to be that "said pleas of privilege are not well taken and should be denied and overruled, and that plaintiff's exceptions thereto should be sustained." The order was "that the pleas of privilege filed herein by said defendants be, and the same are hereby in all respects overruled and denied."
The defendant Fielder has appealed.
Consistently with the court's action in sustaining the exceptions to the pleas of privilege the order should have provided a dismissal of said pleas rather than overruling or denying same. No point is made of this, but nevertheless an ambiguity as to the nature of the court's action results. It appears from the briefs with reasonable certainty, however, that the action intended was such as was appropriate to the sustaining of exceptions to the pleas and not an adjudication of same upon their merits. There being, as it happens, little practical difference, we shall regard the order of the court as a dismissal of the pleas of privilege.
It is our conclusion that the pleas of privilege were disposed of correctly, but upon a wrong theory of law. We think the proposition may be regarded as established by the decisions that in any suit brought in any county of Texas and wherein there is a defendant who is a nonresident of the county — but who resides in the state — if such defendant files a statutory plea of privilege in compliance with said Art. 2007, the filing of a controverting plea by the plaintiff is essential to raise either an issue of law or fact, as to the propervenue of such suit. In the absence of any controverting plea, or waiver of a plea of privilege, the only authorized action of the court, in so far as it is determinative of the question of venue, is to sustain the plea of privilege and transfer the case to the proper county, and court therein, having jurisdiction.
A plea of privilege conforming to the provisions of Art. 2007 is not subject to exceptions, general or special. There are some decisions which purport to recognize an exception to the rule as thus stated. The leading case, perhaps, in recognition of such exception is Yates v. State, Tex. Civ. App.
Let us suppose a case where a citizen of, say, Eastland County files suit in said county against Erath County. Under exception No. 19 the proper venue is in Erath County. The only venue fact under said exception is the nature of the action as being a suit against a county. Under the decision in Shell Pet. Co. v. Grays,
In practical effect, there is no difference in the operation of this rule between an exception which provides that under stated conditions the suit may be brought in a county other than that of the defendant's residence, and other exceptions which provide that suit must or shall be brought in a particular county. Although there is manifest in the decisions considerable misapprehension concerning this proposition, it should, we think, have been regarded as settled by those decisions which hold that such distinction would not operate to determine a matter of jurisdiction, but only of personal privilege. Bonner v. Hearne,
It is, therefore, our conclusion that in any case wherein it is possible to tender an issue of privilege a controverting plea is essential to present an issue of venue, from which it follows that the court erred in sustaining the exceptions to the pleas of privilege as the basis of the court's action in disposing of such pleas.
Notwithstanding the views expressed, there, remains a problem not concluded by what has been said. It may be stated thus: In a case of which the court has exclusive jurisdiction, in which a plea of privilege is filed, but not controverted, what action should the court take? There is, perhaps, no ground for a difference of opinion that a question of venue can never control a question of jurisdiction. The proposition, it is believed, is not open to debate that if a particular court having — necessarily, of course — its situs in a particular county, has exclusive jurisdiction of a case, the venue of such suit, the same as jurisdiction, cannot be in a court of any other county. In such a case, if a plea of privilege be filed it can be of no importance whether a controverting plea be filed or not. This, for the reason that controverting pleas to pleas: of privilege tender only issues regarding venue, not jurisdiction. Can a court charged with judicial knowledge that it has exclusive jurisdiction of a case ever be under a duty of transferring it to a court of another county, which has no jurisdiction? We think not. It seems to us that in such a case the court of its own motion should dismiss the plea of privilege and proceed as though it had never been filed. Such action is required not because of any defect, either of substance or of form, in the plea of privilege such as may be challenged and a ruling of the court invoked as to the sufficiency thereof by general or special exception to the statutory plea of privilege; but because, as a matter of law, no issue regarding venue, in the very nature of the case under the circumstances, can exist.
In the instant: case, had the plaintiff filed the allegations embraced in his petition in the receivership suit, and had procured a "show cause" order, and thereafter the court following proper notice to the defendants had issued the injunction prayed for, it is doubtful, we think, whether any question of privilege would have been attempted to be raised. The venue of the receivership suit was already fixed. The jurisdiction attempted to be invoked by plaintiff's petition, in the present action, was to prevent an interference with the possession of property in custodia legis. That is, in custody of the court: in the receivership suit. In other words, the jurisdiction invoked was a jurisdiction of the court to restrain an interference with its jurisdiction in the pending suit. Such jurisdiction is one inherent in the court. It is a jurisdiction not created, but merely confirmed, by R.S. 1925, Art. 4642, par. 2.
An action or proceeding invoking such jurisdiction is one ancillary to the pending suit or action. The proposition is sound, we think, that the court of this State having jurisdiction of the case to which another action is ancillary, has exclusive jurisdiction of the ancillary proceeding. "Ancillary and incidental actions and proceedings therefor", says Corpus Juris, "do not affect the venue: of the principal suit, notwithstanding if they were brought independently, the venue would be *1094
elsewhere." 67 C.J. p. 82, sec. 130. The reason underlying this proposition is believed to be that in such case the court having jurisdiction of the main action has exclusive jurisdiction of the ancillary action. As to the main action — the receivership suit — the court having acquired therein custody and control of the property it would seem to be true, as said by Chief Justice Cureton in Cleveland v. Ward,
When such an ancillary or incidental action involves an injunction it is not an injunction suit within the provisions of R.S. 1925, Art. 4656, providing that "writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending or such judgment was rendered," etc. International G. N. Ry. Co. v. Anderson County, Tex. Civ. App.
The principle was applied to a condition of facts very similar to that here involved in Dickson v. McLaughlan, Tex. Civ. App.
It has been necessary to consider what effect, if any, is to be given to the fact that the instant suit does not purport to be a part of the receivership suit. This question, it seems, is the same as was considered by the Supreme Court in Walker v. McMaster,
Upon these authorities we are constrained to regard this suit the same as if it were purportedly and certainly a part of the receivership suit.
We think the proposition well fortified by the highest authority that when a court of competent jurisdiction, in this State, has acquired, through a receiver, the possession of property, such property without the consent of the receivership court may not be levied upon under a writ of execution, out of any other court; and such action may be restrained by the court in which the receivership is pending as an interference with its jurisdiction. Ellis v. Vernon, etc., Co.,
Construing the ambiguous order of the trial court as an order dismissing the plea of privilege, it is our conclusion that such was the proper order to have been made, and, that, therefore, the judgment should be affirmed. It is accordingly so ordered. *1095