Buchanan v. Jean , 174 S.W.2d 98 ( 1943 )

Being unable to concur in the majority opinion, I respectfully enter the grounds of my dissent thereto.

In my opinion, the mandatory provisions of Rules 86 and 87 now in force are subject to the construction which our courts have placed upon the same pre-existing provisions contained in Articles 2007 and 2008 of Vernon's Texas Annotated Civil Statutes. If so, when appellant filed her plea of privilege in due form on December 13, 1941, she thereby deprived the trial court of jurisdiction to enter any order in this cause other than one of transfer, unless and until appellee should file a controverting plea under oath setting out specifically the grounds relied upon to confer venue. Galbraith v. Bishop, Tex.Com.App., 287 S.W. 1087; Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154; E. L. Witt Sons v. Stith, Tex. Civ. App. 265 S.W. 1076; Brashears v. Strawn Nat. Bank, Tex. Civ. App. 57 S.W.2d 177. Appellee filed what he designated as his controverting plea on December 19, 1941, and the trial judge noted a hearing thereon for January 5, 1942. However, the grounds relied upon to confer venue did not constitute any ground of recovery against appellant because appellee wholly failed to allege therein, either directly or by adopting the allegations in his original petition, that he had sustained any injury or damage as a result of the crime or trespass complained of, or that any act of commission or omission on the part of appellant was a proximate cause of such injury or damage, if any. Consequently, the trial court was without jurisdiction to order a hearing because there was no pleading that would require or authorize the hearing of any evidence, and no amount of evidence would have authorized the court to overrule appellant's plea of privilege unless she should waive the same. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Jefferies v. Dunklin,131 Tex. 289, 115 S.W.2d 391; Compton v. Elliott, 126 Tex. 232,88 S.W.2d 91; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347.

Appellant did not file any answer of any kind to the so-called controverting plea. At the hearing her counsel appeared and objected to the introduction of any evidence as to the circumstances under which the accident happened, on the ground that there was no pleading to support the same. Appellant's counsel also objected to the introduction of any evidence as to injury or damage resulting from the accident upon the ground that there was no pleading to support the proof offered. Immediately upon the conclusion of the evidence tendered by appellee, counsel for appellant verbally moved the court to strike such evidence because of the insufficiency of the controverting plea in that "it doesn't allege any act of negligence on the part of the defendant, nor does it allege that the plaintiff sustained any damages, nor does it allege that any act of negligence was the proximate cause of the plaintiff's damages. This defendant represents to the court that because there is no pleading to support such proof, the same should be stricken from the record, and the defendant here and now again moves the court to sustain her plea of privilege and transfer this case to the District Court of Navarro County, Texas, and that the court doesn't have jurisdiction over this defendant." The court overruled the motion, counsel for appellant excepted thereto, and the hearing was ended.

Having voluntarily appeared at the hearing for the sole purpose of objecting to the introduction of any evidence that might be improperly offered against her, did appellant thereby waive her right to so object or to insist upon her plea of privilege, unless and until she should also file and present a special demurrer to the so-called controverting plea, or point out by motion or exception in writing the defect in the plea which she clearly pointed out in her verbal motion and exception? I think not. In my opinion, to give such construction to Rules 1, 66 and 90, or to any of them, would do violence to the mandatory provisions of Rules 86 and 87 and to the construction which our courts have consistently placed upon the same provisions in the pre-existing statutes relating to proceedings incident to a plea of privilege.

Furthermore, I do not think there is any authority in law to amend a filed pleading of any kind by a written interlineation, in the absence of an agreement by all parties who may be thereby affected. See Rule 64. If, after evidence has been improperly admitted under a fatally defective controverting plea which the trial court did not have jurisdiction to hear or determine, a written interlineation will cure such defects and thereby confer jurisdiction on the court to hear the issues thus raised, then, in my opinion, the mandatory provisions of Rules 86 and 87 necessarily become meaningless and of no further legal force or effect.

Although I am in hearty accord with a liberal construction of the existing rules of civil procedure, I think under the record before us the judgment appealed from should be reversed.