Texas P. Ry. Co. v. Wood , 211 S.W.2d 321 ( 1948 )

I readily agree to the disposition made of this cause, but I am not in accord with the conclusion reached that any reversal of an order overruling a plea of privilege will result in a reversal of any judgment on the merits against the defendant.

There is here presented a cause for our disposition on the merits in which a plea of privilege has been duly filed and presented, thereby putting in issue the venue of the case and the Court's power to hear and determine it on the merits. After the trial on the merits the case on the plea of privilege was reversed and remanded, as has been pointed out. Without objection the submission of the case on the merits was postponed to allow time for the plea of privilege to be disposed of. There was cause to believe the plea of privilege would be tried expeditiously, but more than one cause contributed to a delay. On the second trial the trial court sustained the plea of privilege and that judgment has just been reversed and it is sent back for another trial on the facts. It is thought neither this Court nor the defendant must suffer the delay that may be incident to the final disposition of the plea of privilege, and the case on the merits indefinitely postponed.

It is also thought if this Court were in a position without further unnecessary delay to finally determine the plea of privilege and that determination should be that the court had venue, then there could be no reason, it seems to me, for a reversal of the main case on that ground alone. It is believed in any case where it is determined before, in the course of orderly procedure, the main case should be disposed of, the court has venue, a reversal to cure an error on the trial of the venue issue should not take with it a reversal of the main case as a matter of course. After all the only essential is that the court have venue, and if it has it at all it had it at the time of the trial on the merits. To reverse a case in every instance on that ground alone would necessarily delay rather than expedite the judicial process. I regard the Saladiner case on that issue altogether sound.

It was only suggested in Goolsby v. Bond, 138 Tex. 485, 163 S.W.2d 830, that it is rather risky to try a case on the merits until the order overruling a plea of privilege is affirmed because if it be reversed and the venue changed then any judgment against the defendant who filed the plea must be reversed. That follows as a matter of course, but it is not thought the holding made in this case was there made or suggested.