Landa v. Bogle

SMITH, Justice. This controversy arose from a “pre-war” transaction. It involves a real estate broker’s commission alleged to have been earned by Mrs. D. M. Bogle in procuring the lease and subsequent sale of 318 acres of land situated near Austin, in Travis county, and owned at the time by Harry Landa, H. D. Gruene, and John Marbach. The claim for commission rests upon a written contract between Mrs. Bogle and the owners of the land on August 13, 1917, in which it was provided that the owners “agree to pay to said D. M. Bogle and Company one dollar per acre commission in case they lease any land described above to the U. S. Government for not less than $10.00 per acre per annum. I or we further agree to pay said D. M. Bogle * * * five per cent commission on the purchase price, whatever said price may be, should the Government purchase the same, any time after this date within five years. D. M. Bogle and Company is hereby authorized to offer my land to the Government for $150.00 per acre, if purchased within the next three years.” ■ Mrs. Bogle procured a lease of the land, at $10 an acre per annum, to the Austin Chamber of Commerce, which was acting therein for the government of the United States, and afterwards procured a sale thereof to the state of Texas, for the use of the federal government, for a lump sum of $40,-000 in cash. Landa and his associates acquiesced in the lease and subsequent sale, and made appropriate conveyances in pursuance thereof. They paid Mrs. Bogle the stipulated commission upon the lease, but paid her nothing for procuring the sale. On September 1, 1920, Mrs. Bogle instituted a suit in a district court of Travis county against Landa, Gruene, and Marbach, as well as the Austin Chamber of Commerce, to recover 5 per cent, commission on the sale price procured by her for the owners of the land. The defendants were all served with citation except Gruene, whose absence and subsequent death in another state prevented such service. The Austin Chamber of Commerce duly answered to the merits, but on October 5, 1920, Landa and Marbach filed timely pleas of privilege to be sued in their home county, Comal. These pleas were not controverted by the plaintiff within the five days fixed therefor by statute, or at any time thereafter, in consequence of which the defendants became entitled to a change of venue as a matter of law, so that the trial court had no further jurisdiction over the defendants, except to order the case as against them transferred to Comal county. No such order was entered, however, On April 4, 1921, the death of defendant Gruene was suggested of record, and the ease continued to make new parties, but this was never done. On January 3, 1922, at the instance of the clerk of the court, the plaintiff was ruled for costs, but never responded to the rule, so far as the record shows. Nothing further was done in the case until October 7, 1930, a period of eight years and ten months, when it was dismissed for want of prosecution, apparently upon the court’s own motion. But a year later, on September 11, 1931, thirteen years after the cause of action arose, eleven years after the suit was commenced and the court had lost jurisdiction over the defendants because of their uncontroverted pleas of privilege, Mrs. Bogle instituted a new suit in said district court of Travis county, in the nature of a bill of review to revive and reinstate the former action. This new action was against Landa, the only surviving original defendant, Bertha Gruene, indi [581] vidually and as the executrix of the estate of the original defendant, H. W. Gruene, deceased, and Minna Marbach and three other joint executors of the estate of John Mar-bach, the third original defendant, who had died in the interim, in 1925. In the new suit all defendants, including: Landa (who had filed a plea of privilege in the original action to be sued in Comal county where he then resided), filed pleas of privilege to be sued in the counties of their respective residences, to wit, Landa and another in Bexar county (to which in the interim Landa had removed from Comal), and the three other defendants (none of whom had ever been made parties to the original suit) in Comal county. These pleas were first overruled by the trial judge, but afterwards were sustained in order, as recited in the judgment, to avoid conflict with a prior provision in the same decree wherein the court sustained the original plea of privilege of Landa to be sued in Comal county. The several defendants also, filed pleas in abatement to the new suit, as.well as exceptions thereto, all of which were overruled. Thereupon the court rendered the following further order : “And $ * * it appearing * * * that under the law the order of dismissal for want of prosecution ⅜ * * entered in this Court on the 7th day of October, A. D. 1930, in Cause No. 37780, (the original suit) ⅜ * * wag entered by the Court improvidently and inadvertently and that the Court had no power or authority to enter said order, and that the same is void, and the court being of the opinion that said order is void and should be set aside, it is now ordered, adjudged and decreed by the Court that said order so entered as aforesaid be and the same is now deemed null and void and of no effect and is now cancelled and annulled, and the said cause No. 37780 between the parties aforesaid, is now reinstated upon the docket of this court. “And it being the opinion of the Court that all matters in controversy and issues involved in this cause and also in said cause No. 37,-780 should now be heard, tried and determined in this cause no 50353, (the new suit), and in order that this might be done in a proper manner and in accordance with the law and that said Cause No. 37780 may also be properly disposed of, it is ordered and decreed in accordance with the prayer of the plaintiff’s petition that said two causes, No. 37780 and this cause No. 50353 be and they are now hereby consolidated into one cause to be henceforth tried, determined and disposed of in this one consolidated cause No. 50353, wherein Mrs. D. M. Bogle is plaintiff and Harry Landa, et al. (the other defendants being the defendants mentioned in the first amended original petition herein) are defendants. “And plaintiff is now granted leave to discontinue her case as to the defendant, Austin Chamber of Commerce, and as to it this cause is now dismissed. “And proceeding now in this consolidated cause to dispose of all the issues in this one consolidated cause and after hearing the evidence the Court is of the opinion- that the original pleas of privilege filed in the original cause No. 37780 are well taken and that they should be and are now sustained in this consolidated cause is now ordered to be transferred to the District Court of Bexar County, Texas, 73rd Judicial District. “And in this connection that there may be no conflict in the orders, it is decreed that' the two orders heretofore entered in this Court, in this cause, on to-wit, October 16, 1931, and on November 4th, 1931, overruling defendants’ pleas of privilege be cancelled, annulled and set aside, and that this consolidated cause under its No. 50353 and caption aforesaid be transferred to the said District Court of Bexar County, Texas, 78rd Judicial District. * * * “It is ordered that plaintiff do have and recover her costs and that the defendants pay the costs in this new cause No. 50353, but that the plaintiff pay the costs in said original Cause No. 37780, including Transcript for all of which judgment for costs execution may issue against the parties respectively.” In her petition in the bill of review Mrs. Bogle undertook to excuse herself for not prosecuting the original suit. As one reason for her dereliction she complained that the defendants Landa and Marbach had not followed up their pleas of privilege and procured the transfer and trial of the cause in the district court of Comal county, whereas, as a matter of course, that whole burden rested upon her as the plaintiff and not upon the defendants. As another reason, Mrs. Bogle complained that the heirs and representatives of the original defendants Gruene and Marbach failed and refused to voluntarily come in and have themselves substituted as defendants in lieu of their deceased ancestors, so that Mrs. Bogle could take judgment against them upon what they knew, she alleges, was certain and incontestible liability; whereas, as a matter of course, the whole burden of impleading and bringing those parties into court rested upon Mrs. Bogle herself, and those parties were under no legal duty in the premises. The third and remaining reason offered by Mrs. Bogle for permitting her case to lie inert on the docket for ten years, and then to be dismissed and lie off the docket for another year, was, generally, that there had been “some negotiations” between some of the parties, not named, looking towards a settlement of the controversy. These several reasons, none of them, af [582] forded any legal excuse for the plaintiff’s failure to prosecute the original action, or to timely move to restore it to the docket after dismissal. For to entitle a party to set aside a judgment rendered at a former term it is not enough that he show that irregularities were committed in the disposition of the case, in the face of a meritorious cause of action. He must show that something more than injustice had been done him. He must show that he was prevented from prosecuting his cause of action by “fraud, accident, or the acts of the opposing party, wholly unmixed with any fault or negligence of his own.” Wood v. Lenox, 5 Tex. Civ. App. 318, 23 S. W. 812, 813, and authorities there cited. Mrs. Bogle did not even begin to make such showing in her pleadings in this case. Her allegations, rather, affirmatively negatived such showing, for she says, in effect, in short, and vaguely, that, while there were suggestions of negotiations, and possibly inferentially actual negotiations looking toward settlement, she was nevertheless waiting for and looking to the defendants to follow up their pleas of privilege and get the case transferred and tried. in another court, albeit 'such burden rested solely upon the plaintiff herself; that she was nevertheless also waiting for and looking to the heirs and representatives of deceased defendants to come on into court of their own volition, knowing (appellee alleges) that they were liable in the case, albeit the burden of impleading those parties rested solely upon the plaintiff herself. The devious course over which the litigation has teetered to its present precarious status is difficult to follow or excuse. Its confusion is aggravated by more than 100 pages of pleadings which incumber the record, and is confounded no less by more than 200 pages of briefs in which are presented twenty-four assignments of error, twenty-five propositions, and nineteen counter propositions of law. Both parties assail the regularity and sufficiency of each other’s pleadings, procedure, and presentation. Appellee particularly urges the failure of appellants to protect their record and make their objections and save their exceptions as the case dodged along its awkward course. But appellants have insistently and consistently, albeit loosely, protested the attitude and rulings of the two courts below, the first in reviving the suit, and the second in rendering judgment therein. And appellants, with equal vigor, assail appellee’s pleading and practice, which perhaps would not survive strict application of the rules, hut which must be forgiven in view of the leniency of the trial courts’ rulings thereon. The plaintiff below has never controverted the plea of privilege filed in the district court of Travis county in the original suit thirteen years ago, and makes no contention here that that plea was not then, or is not now, well taken. And in the present suit that court affirmatively sustained the pleas of privilege and ordered the case transferred to Bexar county. We think the appeal may be justly disposed of by the conclusions now to be stated: When a plea of privilege is uncontro-verted, or is otherwise sustained, the court thereby loses jurisdiction of the person of the defendant, the question of venue becomes res adjudicata, and the controversy set up against the defendant in the suit may not be pursued or renewed against him, except in the county of his residence. Watson Co. v. Grain Co. (Tex. Com. App.) 292 S. W. 174; Dallas Joint-Stock Land Bank v. Webb (Tex. Civ. App.) 48 S.W.(2d) 434. But, until the ruling sustaining the plea of privilege is announced or the order thereon is entered, the court retains jurisdiction over the ease, at least for the purpose of dismissing the suit upon motion of the plaintiff. Atlantic Oil Co. v. Jackson, 116 Tex. 570, 296 S. W. 283; Rice v. Raleigh Co. (Tex. Civ. App.) 48 S.W.(2d) 648; Texas-Louisiana Power Co. v. Wells (Tex. Com. App.) 48 S.W.(2d) 978. And, since the court has power to dismiss the suit at the instance of the plaintiff, as clearly held by the above authorities, then surely by the same token the court had the power to dismiss the suit upon its own motion, in case of plaintiff’s failure or refusal to respond to a rule for costs, or for want of prosecution, as in this case, or where by any other course of conduct the plaintiff has manifestly abandoned his suit. The district court of Travis county, therefore, had jurisdiction to dismiss the suit for want of prosecution or for failure of the plaintiff to respond to the rule for costs, and certainly such dismissal was well within the trial judge’s discretion when plaintiff had not secured a transfer of the case to Comal county, but had allowed it to lie inactive on the docket for more than ten years. The order of dismissal should be upheld, unless a very clear showing be made under the rule stated, requiring that it be set aside. It was not null or void ab initio, but was valid, and the district court of Travis county, even assuming it had jurisdiction, erred in setting it aside and reinstating the case upon that ground. The district court of Travis county, having sustained the plea of privilege filed by the defendants in the second suit, had no power to enter any orders therein except "to transfer the same to Comal or Bexar county as prayed for in the sustained picas. This is so particularly in view of the well-established rule that in cases of bills of review there can be but one trial and one final judgment. The court cannot dispose of a bill [583] of review by piecemeal, that is, by having two trials, one to determine whether or not the former judgment shall be set aside, and the other to retry the original suit after the judgment in it has been set aside. Both matters are inextricably connected for the purpose of trial and judgment. Roller v. Wooldridge, 46 Tex. 485; Humphrey v. Harrell (Tex. Com. App.) 29 S.W.(2d) 963. Therefore the orders of the court reinstating the original suit and consolidating the same with the new, and ordering the consolidated suit tried upon the merits of the original action, constituted fundamental error, of which, even though loosely assigned, this court must take notice. Under their sustained pleas of privilege the defendants were entitled to have all phases of their controversy, including the question of setting aside the judgment of dismissal, tried in the forum of their domicile, to which end the judgment is reversed and the cause remanded for all purposes. All costs which accrued in the district court of Travis county, as well as of this appeal, will be taxed against appellee.