Conlee v. Burton , 188 S.W.2d 713 ( 1945 )

On the Acts of the Legislature and the decisions of our Supreme Court I am content to repose my judgment.

This appeal is primarily from an order of the District Court of Rockwall County, Texas, overruling defendant's plea of privilege. The appeal from the judgment on the merits is merely incidental to avoid its finality pending the appeal on the venue question and to prevent the plea of privilege from becoming moot or waived.

It is a recognized rule in this State that it is within the discretion of the trial court to hear evidence upon a plea of privilege in a separate hearing, or to hear it in connection with the trial of the main case, and, in so doing there is no waiver of the error in overruling the plea of privilege, where the trial on the merits follows immediately after the plea was overruled; and, it is also a settled rule that where a plea of privilege is overruled and the trial on the merits follows immediately, the failure to appeal from both judgments is fatal to the appeal from the order on the plea of privilege — the judgment of the court below becomes final and the appeal is thereby waived, Gilmer v. Graham, Tex.Com.App., 52 S.W.2d 263; General Exchange Ins. Corp. v. Hill et al., Tex.Civ.App. 131 S.W.2d 287; Clark v. Dallas Joint Stock Land Bank, Tex.Civ.App. 153 S.W.2d 668.

In this instance the appeal has been timely perfected by the giving of notice of appeal and the filing of an appeal bond directed to the action of the trial court in overruling defendant's plea of privilege: Appellant's assignments and briefs are directed solely to that end and appellee's reply refers exclusively to the order on the plea of privilege. There is not a single complaining error on the part of appellant directed to the judgment of the trial court on the merits. Therefore, in absence of such assignments or briefs challenging or defending the judgment on the merits, the appeal on that phase of the case must necessarily be affirmed or dismissed for want of prosecution, if, in fact, no appeal has been perfected from the order overruling the plea of privilege.

Authorities declare that it is not within the province of an appellate court to pass upon the merits of a cause of action on appeal from an interlocutory order, or to consider any matters which do not relate to the propriety of the order appealed from and this rule has been applied to orders overruling pleas of privilege. Lind v. Merchants' State Bank, Tex.Civ.App. 16 S.W.2d 385; United Chemical Co. v. Leathers, Tex.Civ.App. 285 S.W. 918; Wolf v. Sahm, 55 Tex. Civ. App. 564,120 S.W. 1114, 121 S.W. 561. So, if the order overruling defendant's plea of privilege is not before this Court, because of an insufficient appeal bond, as held by the majority opinion, then, surely the decision of this Court should dismiss the appeal without comment. Manifestly, the majority opinion is inconsistent with the record and without a supporting theory advanced by anyone connected with this appeal. It might be well said that the parties are supposed to know their rights and to be capable of conducting their case. To entertain and decide the issue here upon the merits is most manifestly the exercise of original jurisdiction and a departure from the Constitution of appellate courts. I conceive it to be the sole province of an appellate court to adjudicate questions which are presented to the court in the manner provided by law. The points upon which this case is decided by the majority were neither presented, in briefs or otherwise, by appellant or appellee.

The question of venue alone, as I conceive it, is before this Court for adjudication, recognized by all parties to this appeal, and on that issue this appeal should stand or fall. This Court is not warranted to review a judgment where no assignments of error have been presented and no fundamental error suggested in the record, thereby depriving appellant of her right to be heard by briefs and argument. When a party has seen proper to waive assignments of error which it might have urged, I do not deem it the part of judicial duty to interpose ex officio an opinion. The parties to this litigation, having chosen not to present questions as to the judgment on the merits, contenting themselves to the order on the plea of privilege, I do not deem it our province to make assignments for them. They may have had the best of reason for not wishing to controvert the judgment on the merits.

The dominant purpose of our venue statute is to give a person who has been sued the right to defend such suit in the county of his residence, except under well defined exceptions. Meredith v. McClendon, 130 Tex. 527,111 S.W.2d 1062; Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896; Lasater v. Waits, 95 Tex. 553, 68 S.W. 500; Compton v. Elliott,126 Tex. 232, 88 S.W.2d 91. Venue of suits for readjudicating custody of a minor because of change in conditions of a divorce decree as granted is not an exception, but venue is fixed by our Supreme Court in the county of the residence of the parent or custodian to whom custody has been awarded. Flannery v. Eblen, Tex.Civ.App. 106 S.W.2d 837, error dismissed; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Wilson v. Wilson, 137 Tex. 528, 155 S.W.2d 601, 602.

In the case of Wilson v. Wilson, supra, a minor child was awarded to Mrs. Amanda Wilson the paternal grandmother of the minor, who resided in Kaufman County, Texas, in a divorce proceeding in a district court of Dallas County, Texas. The mother, because of a change in conditions of the divorce decree, instituted suit against the grandmother in Dallas County for readjudicating custody of the child. The trial court overruled the grandmother's plea of privilege and immediately awarded the custody of the minor to the mother. The appeal folowed on the final judgment on the merits with appropriate propositions and assignments on the action of the trial court in overruling the plea of privilege. Only one appeal bond was filed in that case. Our Supreme Court, opinion by Judge German, citing Lakey v. McCarroll, supra, said that: "The proper venue for an action involving the custody of a minor was the residence of the custodian of such minor. * * * It is therefore manifest that the court erred in dismissing the plea of privilege filed by Mrs. Amanda Wilson." This is the settled law of this state, and should be followed by all inferior courts.

Article 2008, Vernon's Ann.Civ.St., provided that either party may appeal from a judgment sustaining or overruling a plea of privilege and that, if the judgment is one sustaining the plea and an appeal is taken, such appeal shall suspend trial of the cause on the merits, pending final determination of such appeal; therefore, in effect, authorized a trial court, after overruling a plea of privilege, to proceed to trial on the merits and render judgment thereon. It will be seen that the statute made no provision of the mode, manner or time in which an appeal from an interlocutory order sustaining or overruling a plea of privilege may be perfected. This article has, in effect, been adopted and amended in the Texas Rules of Civil Procedure, Rule 385, which provides that "Appeals from interlocutory orders (when allowed by law) may be taken by (a) Filing an appeal or supersedeas bond within twenty days after rendition of the order appealed from, conditioned as required by the rules governing appeals generally; and (b) Filing the record in the appellate court within twenty days after rendition of the order appealed from. * * * (c) Where the appeal is from an order sustaining a plea of privilege, transfer of the venue and trial upon the merits shall be suspended pending the appeal." (Italics mine)

It will be observed that the rule above quoted merely supplies the mode, manner and time in which appeal from an order sustaining or overruling a plea of privilege may be perfected, all of which was lacking in Art. 2008, supra. Therefore the Rule 385, in effect, authorizes a trial court, after overruling a plea of privilege to proceed to trial on the merits and render judgment thereon as in Art. 2008; and, then authorizes an appeal from the order overruling the plea of privilege, either as a separate appeal or by including it in the appeal from the judgment on the merits. It will also be observed that this rule (385) denominates the rulings of the trial court on overruling or sustaining pleas of privilege as an "interlocutory order"; whilst the court's actions on the merits of causes are called "judgments." Our Supreme Court has adopted the term "order" to decrees on all ancillary and interlocutory matters, and the term "judgment" to decrees on the merits. Rule 332, relative to appeal bond in probate matters, provides "The party desiring to appeal shall, within fifteen days after suchdecision, order, judgment or decree shall have been rendered, file with the county clerk a bond * * *" Rule 353 provides: "An appeal, when allowed by law, may be taken by notice of appeal (1) in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgement ororder overruling motion for new trial is rendered." (Italics mine) The citing of the above provisions of the rules promulgated by the Supreme Court are important only to show that the appeal bond in this case is from both the judgment and order, closely following the statute and the rules applicable to appeal bonds. It is held in other jurisdictions, and, I think, is equally true here, that an "order" of a court is distinguished from a final judgment. A judgment is a final determination of the suit, while an "order" is applied to ancillary and interlocutory decrees. People v. Logan, 1 Nev. 110; Rae v. Harteau, 7 Daly, N. Y., 95; In re Rose's Estate, 80 Cal. 166, 22 P. 86; Sobieski v. City of Chicago,241 Ill. App. 180; Vol. 30, Words and Phrases, Perm.Ed., "Order," pp. 117, 118; Loring v. Illsley, 1 Cal. 24. In Loring v. Illsley, the California Supreme Court succinctly stated the distinctive features between an "order" and a "judgment"; it quoted in Words and Phrases, supra, that "The distinction between an order and a final judgment is that the former is a decision made during the progress of the cause, either prior or subsequent to final judgment, settling some point of practice or some question collateral to the main issue presented by the pleadings and necessary to be disposed of before such issue can be passed upon by the court, or necessary to be determined in carrying into execution the final judgment. The latter is the determination of the court upon the issues presented by the pleadings, which ascertains and fixes absolutely and finally the rights of the parties in the particular suit in relation to the subject-matter in litigation, and puts an end to the suit."

It will also be observed that Rule 354, Texas Rules of Civil Procedure, does not prescribe the contents of an appeal bond, nor did the statute, Art. 2265 (which was in force prior to the enactment of the rule) prescribe its contents, further than to provide that it shall be a bond approved by the clerk, payable to the appellee in a sum at least double the probable amount of the cost of the court below, the Court of Civil Appeals and the Supreme Court, to be fixed by the clerk, conditioned that such appellant shall prosecute his appeal with effect and shall pay all the costs which have accrued in the court below and which may accrue in the Court of Civil Appeals and Supreme Court. Obviously the appeal bond filed by appellant herein meets every requirement specified in the rule; and, further described the judgment by its number (2661), date (Jan. 17, 1942), style of the case (Lemon Howell Burton v. Mary Cecelia Burton Conlee), the court (District Court of Rockwall County, Texas), and thejudgment and order from which appellant expressed a desire to perfect the appeal. The bond recites: "* * * a judgment was rendered overruling the Privilege of Mary Ceccelia Burton Conlee, and further the * * * final judgment awarding custody of William Henry Burton to R. H. Burton, * * * from which final judgment and order the defendant Mary Cecelia Burton Conlee desires to perfect an appeal to the Court of Civil Appeals for the Fifth Judicial Supreme District of Texas, at Dallas, Texas." (Italics mine) A very casual glimpse at the bond clearly shows that appellant appealed from both the "interlocutory order" overruling her plea of privilege and the "judgment" awarding the custody of the child to R. H. Burton. The interpretation given to it by the majority opinion, that an appeal was only perfected from the final judgment and not from the order overruling defendant's plea of privilege, is untenable, contrary to all the authorities of this state that I have been able to find. Hodde v. Susan, 63 Tex. 307; In re Estate of O'Hara, 60 Tex. 179; Hollis v. Border, 10 Tex. 277; Smith v. Cheatham, 12 Tex. 37; Herndon v. Bremond,17 Tex. 432; Horton v. Bodine, 19 Tex. 280; Jenkins v. McNeese, 34 Tex. 189; Howard v. Malsch, 52 Tex. 60; International G. N. R. Co. v. Smith,58 Tex. 74; Morgan v. Richardson, Tex.Civ.App. 25 S.W. 171; Texas P. R. Co. v. Fields, Tex.Civ.App. 63 S.W. 653; Frerie v. Cloudt, Tex.Civ.App. 67 S.W. 890; Murphy v. Williams, 103 Tex. 155,124 S.W. 900; McCamey v. First Nat. Bank, Tex.Civ.App. 75 S.W.2d 910, 911; Pillow v. McLean, 126 Tex. 349, 88 S.W.2d 702; Monk v. Danna, Tex. Civ. App. 110 S.W.2d 84; Neely v. Tarrant County, 132 Tex. 357,124 S.W.2d 101; Keys v. Alamo City Baseball Co., Tex.Civ.App.142 S.W.2d 694.

In the case of Murphy v. Williams, supra, the appeal bond misdescribed the judgment in giving its date as April 4 when its true date as shown by the record was April 1, 1908. Our Supreme Court held in that case that the misdescribed judgment was a mere irregularity, waived by failure to move to dismiss the appeal. The Court said: "All such objections to irregularities in the proceedings which do not render them void and entirely defeat the jurisdiction of the appellate court are waived by the failure to move to dismiss the appeal, or writ of error, in the Court of Civil Appeals. (Citing authorities.) It may be further said that the objection, if made in time, would not have been good. The petition and bond gave the style and number of the case, the parties to it, and set out the jurisdiction in haec verba, leaving no question that the one intended is that found in the record."

In Pillow v. McLean, supra, the appeal bond correctly stated the number of the case, the names of the parties, the court in which same was tried, the date of judgment and a brief mention of the judgment. The bond was approved by the clerk of the trial court and the record timely filed in the Court of Civil Appeals. No objection to the bond was urged by the appeal in the Court of Civil Appeals, but that Court upon its own motion dismissed the appeal on the ground that no appeal bond was filed for a part of the judgment involving a cross action. 86 S.W.2d 646. Judge Hickman, for our Supreme Court, said [126 Tex. 349, 88 S.W.2d 703]: "The main purpose of a bond on appeal is to afford security for the adverse party. There is no requirement that an appeal bond describe the judgment in detail. If that judgment is sufficiently identified as the one appealed from, and the other requirements of the statute are met, the purpose of the bond has been fully served." (Citing authorities.)

In Neely v. Tarrant County, supra, an alleged defective bond was involved, Judge Smedley, speaking for the Supreme Court, said [132 Tex. 357,124 S.W.2d 105]: "While there is no express requirement that the bond describe, or make reference to, the judgment, it is held that it should describe the judgment sufficiently to identify it. (Citing authorities.) * * * But to accomplish an appeal from a distinct and severable portion of a judgment it must clearly appear from the face of the bond that the appeal is so limited. Otherwise the appeal carries upthe entire case." (Citing authorities) (Italics mine)

In the case at bar, the appeal bond shows on its face that the appeal is from the final judgment and order on the two mentioned appealable cases without limitations. Why would appellant have mentioned the order overruling the plea of privilege if she did not wish to appeal therefrom? The bond accurately described (1) the interlocutory order overruling the plea of privilege, "and further" (2) the judgment on the merits and the costs; then it proceeds, — "from which final judgment and order" the defendant appeals. In my judgment, the majority opinion that no appeal is perfected from the order cannot be sustained by authority or reason.

Furthermore, assuming for argument that the bond is defective both in substance and in form, which, indeed, I think would do violence to the language employed, the appellee made no motion to dismiss the appeal. Article 1840, R.C.S. of 1925 (as also Art. 1840 — A Vernon's Ann.Tex.Statutes, Chap. 187, Acts Reg. Session, 42nd Leg., in somewhat broader terms, adopted as Rule 430. The Texas Rules of Civil Procedure, provides that when there is a defect of substance or form in an appeal bond, the appellate court may allow same to be amended. In view of this statute, it is held by our Supreme Court in numerous decisions that defects either of substance or form in an appeal bond are not jurisdictional and are waived by failure to present objections to the bond by motion within thirty days after the transcript is filed. Williams v. Wiley, 96 Tex. 148, 71 S.W. 12; Pillow v. McLean, 126 Tex. 349,88 S.W.2d 702; Roberts v. Stoneham, Tex.Civ.App. 31 S.W.2d 856; Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101; Keys v. Alamo City Baseball Co., Tex.Civ.App. 142 S.W.2d 694.

It is not shown from the record in this case, or otherwise, that appellee ever filed a motion presenting objections to the appeal bond within thirty days after the filing of transcript in this Court, and, in fact, we know none has ever been filed. The bond shows at least an attempt to comply with the statute in order that this Court might review the action of the trial court on the final judgment and the final order. In such a case, Judge Hickman, in Pillow v. McLean, supra, said: "In construing that article (Art. 1840 R.S. 1925), this court, speaking through Justice Williams, in Williams v. Wiley, 96 Tex. 148, 71 S.W. 12, 14, used this language: `The bond shows on its face that it was filed as an attempt to comply with the statute in order to prosecute the writ of error, complies in most respects with the statute, and must be held sufficient, under the liberal provision quoted, to give jurisdiction to the court, and to entitle plaintiffs in error to file a new one. It may, indeed, be seriously doubted whether or not, with such a statute in force, it should longer be held that the jurisdiction of an appellate court at all depends on the giving of a bond'." Such is the holding of all adjudicated cases in this state.

The new Texas Rules of Civil Procedure, Rule 430 et seq., have not overturned the law that a defective appeal bond in substance or form extends jurisdiction to the appellate court and is sufficient to entitle appellant to a right of review. It may be true that under Rule 363, the giving of an appeal bond is necessary to extend jurisdiction to the appellate court, but certainly a defective bond is amendable. This, however, we have not been called upon to decide. The timely giving of the notice of appeal and the filing of a bond as required by the rules gave extended jurisdiction to this Court, hence the appeal should be given the consideration intended by all parties to the litigation, in advance of a hearing on the merits. The venue of this case being in Jack County, Texas, the trial court erred in overruling appellant's plea of privilege. Therefore, the merits of the case were not rightfully before the court below for determination; and for the same reason the merits are not properly before this court for decision. The trial court had no jurisdiction to decide the case upon its merits, hence this court has none. The matter is jurisdictional. Slaughter Co. v. Slaughter, Tex.Civ.App. 288 S.W. 1107; Cornell v. Cramer, Tex. Civ. App.72 S.W.2d 397; O'Brien v. Smith, Tex.Civ.App. 80 S.W.2d 459; Goolsby et al. v. Bond, Chief Justice, et al., 138 Tex. 485, 163 S.W.2d 830.

On the merits, I wish only to say that the appellant may be a scarlet woman, but where are her accusers, and why is she not entitled to be heard and have her day in court and the issues on the merits of the lawsuit be tried in the county of her residence, as held in the Goolsby case, supra? I am not ready to characterize appellant as an unfit person to rear her infant son without evidence to support the issue, and without the jurisdiction to decide the issue. She is the child's mother; and, as stated by Judge Young, for this Court, in Wilson v. Underhill, Tex.Civ.App. 131 S.W.2d 1923, same case Wilson v. Wilson, Tex.Com.App.,155 S.W.2d 601, "The matter here involved is of deep concern to the parties at interest; equally so to us, relating as it does to a child's best interest and well-being. The testimony in support of the claim on either side in the judicial scales is nearly equal, but the relationship of mother and daughter is sufficient to preponderate the balance in the mother's favor."

So, in the case at bar, it is safe to say that we may depend upon the trial judge of Jack County, Texas, the county of the defendant's residence, in a fair and impartial trial, weigh well the evidence in this case, then and there determine the issues in the light of the best welfare of the child; but whether that be true or not, the law is that the venue is in that county and our duty is plain — I gladly follow it. The judgment and order should be reversed, the plea of privilege sustained, the appeal on the merits dismissed for want of jurisdiction and the case ordered transferred to the District Court of Jack County, Texas.

I dissent from the majority.