4 S.W.2d 995 | Tex. App. | 1928
Appellee in this case thus pleaded his cause of action: He alleged that in the year 1919 he sold to Fred Neidigk "all the pine mill timber now standing and growing" upon certain land owned by him in Montgomery county, Tex., pleading the conditions of the deed, which, in hæc verba, was made a part of his petition; that Neidigk assigned his interest in this deed to appellant; that he and appellant entered into an extension agreement extending the time in which the timber was to be removed upon the conditions of the original deed and upon a new consideration; that appellant entered upon the land under the contract, and not only cut and removed all timber conveyed by its terms, but cut and removed timber from the land not covered by its terms, expressly pleading that such timber was not within the contract, describing fully the timber so cut, and dividing it into three classes of value of $2,500, $245.90, and $6,250, respectively, and prayed judgment for these sums with a special prayer:
"That upon a hearing thereof of said contracts and the rights of parties hereto growing out of said contracts and agreement be construed and determined by this court and such other and further relief, general and special, to which this plaintiff may show himself entitled and as in duty bound and ever pray."
Appellant answered in due order of pleading by the statutory plea of privilege, as follows:
"I. The defendant was not at the time of the institution of this suit, nor at the time of the service of process herein, nor at the time of the filing of this plea of privilege, a resident of Harris county, Tex.
"II. That this defendant was at the time of the institution of this suit, and at the time of the service of process on it, and at the time of filing this plea, a resident of Montgomery county, Tex.
"III. That at the time of the filing of this suit, and at the time of service of process on it, and at the time of filing this plea, no exception to exclusive venue in the county of one's residence provided in law exists in said cause."
This plea was answered by the following controverting affidavit:
"I. That the defendant is a corporation and that the cause of action herein sued upon arose in part in Harris county, Tex., for this: That the written contract of date the 26th day of January, 1925, between the plaintiff and the defendant, Grogan-Cochran Lumber Company, as pleaded in full in plaintiff's petition filed in this cause, was made and entered into between the plaintiff and the defendant in Houston, Harris county, Tex.; that the cause of action is the contract herein sued upon and the breach thereof, and said contract having been made and entered into by and between plaintiff and defendant in Houston, Harris county, Tex., venue in this suit properly lies in Houston, Harris county, Tex.
"Because of the facts aforesaid, plaintiff respectfully submits that the venue of this suit lies in Harris county, Tex., under the provision of subdivision 23 of article 1995 of the Revised Civil Statutes of 1925." *997
Appellee testified in his own behalf that he sold the timber on his land to Fred Neidigk under the deed pleaded; that Neidigk sold to appellant, and that appellee and appellant entered into the extension agreement as pleaded; that appellant entered upon the land and cut and removed the timber for which appellee was suing. He testified further that it was his contention that the timber for which he was suing was not conveyed by the terms of the deed. He testified:
"They went on there without right and cut this timber not according to contract; they cut timber that had grown up; they cut timber they had no title to. That is what I am suing for. It is my contention they went in as trespassers and cut timber they had no title to. They went on my land and premises with the lawful right under that contract. Under this contract they were given a certain time to enter upon my land and cut and remove the timber therefrom. They cut and removed the timber concerning which I make this complaint, at the time they entered on my land and premises under this contract, they cut timber for which I sue in this suit at the time they entered the premises under my contract. I pointed out certain parts of my land that I wanted them to cut timber from. At the time they cut and left that land there was other timber left at the time that was not of sawmill dimensions at the time it was first cut over. They thereafter cut and removed certain portions of that timber."
Appellant's attorney testified that the construction of the contract was the only point in issue in the case. On the record as thus made appellant's plea of privilege was overruled, and the case is before us on appeal from that judgment.
Appellant insists that the controverting affidavit was insufficient, in that it did not affirmatively allege facts conferring venue on the trial court, the point being that the affidavit does not set out the facts of appellant's cause of action. The law seems to be that the controverting affidavit is itself a plea and must contain allegations of fact relied upon to sustain the venue in the trial court, and if not affirmatively alleged, the affidavit must adopt the terms of the petition, either by reference or as an exhibit. Clearly, in this respect the affidavit was insufficient. There was nothing alleged to show the nature of the cause of action nor that would bring the case within article 1995, § 23. On authority of Jacobson v. Berwick (Tex.Civ.App.)
But pretermitting that point, the court erred in overruling the plea of privilege. It clearly appears, both from appellee's petition and his evidence, that this was a suit to recover damages for cutting and removing growing pine timber on land located in Montgomery county, where appellant had its principal office and its place of business, and that appellant had no office or agent in Harris county. It was, therefore, a suit to recover damages to land, within exception 14 of article 1995, providing that:
"Suits for the recovery of lands or damages thereto, * * * must be brought in the county in which the land, or a part thereof, may lie." Railway Co. v. Foster (Tex.Civ.App.)
While this is not a jurisdictional statute (Houston Oil Co. v. Bayne [Tex Civ. App.]
After appellant's plea of privilege had been overruled, the case was called for trial on its merits, and it was forced to proceed with its defense, and in doing so answered to the merits, and impleaded its warrantor, without saving by a special plea its rights under its plea of privilege, and without making such answer subject to its plea of privilege. On this ground appellee asserts that the plea of privilege has been waived. This is not a sound proposition. Having duly prosecuted its plea of privilege to judgment, and having reserved proper exception to that judgment, and taken the necessary steps to perfect its appeal, the filing of an answer and impleading its warrantor did not waive the plea of privilege.
By filing its plea of privilege in the due order of pleading appellant is within the rule announced in Hickman v. Swain,
"If the plea of privilege was filed in the due order of pleading, the filing thereafter of a plea over against plaintiff did not affect the right of the defendants to insist upon the transfer of the case to the county in which they resided." *998
But it is our judgment that this rule based on due order of pleading does not control in this case. We cite the Hickman Case only to answer appellant's proposition that the failure to make the defensive pleas subject to the plea of privilege constituted a waiver. He based his proposition on Douglas v. Baker,
"In order to bar the right of appeal upon the ground of acquiescence, the acts relied upon must be such as to clearly and unmistakably show acquiescence, and it must be unconditional, voluntary, and absolute."
See, also, O'Fiel v. Janes (Tex.Civ.App.)
Appellee insists that the plea of privilege was insufficient in that it did not specifically refer to and embody section 14 of article 1995, supra. This is not a sound proposition. The plea of privilege was a literal compliance with article 2007, Revised Statutes, and therefore sufficient. Under article 2008, Revised Statutes, prescribing the essential elements of a controverting affidavit, it was required of appellee to plead specifically the provisions of the statute sustaining jurisdiction in Harris county. Witting v. Towns (Tex.Civ.App.)
In further support of his proposition that the plea of privilege was insufficient and that appellant cannot now invoke section 14, article 1995, appellee says in his brief that this provision of the law was not called to the attention of the trial court in any way, that the case was not tried on that theory; therefore it cannot on this appeal invoke section 14. This is a mere assertion by appellee without support in the record. There is nothing to show that section 14 was not called to the court's attention and denied application to the facts of this case. It is the law that appellant cannot try his case upon one *999
theory in the lower court and upon a different theory in the appellate court. Downs v. Stevenson,
From what we have said, it follows that the trial court erred in overruling the plea of privilege. It is therefore our order that the judgment of the trial court be reversed and this cause remanded, with instructions to transfer this case to the district court of Montgomery county.
Reversed and remanded, with instructions.