Kelso v. Adams

Opinion by

Delaney,- J.

Our opinion is, that the court erred in overruling appellant’s-exceptions to the plea to the jurisdiction. Appellee had been duly served with process, and we think that his consent to a general continuance, and especially his agreement to refer the matter in dispute to arbitration was a submission to the jurisdiction of the court. Our statute requires pleadings to be filed in the due order of pleading. By the old order of pleadings a plea to the jurisdiction could not be filed after a general imparlance. (3 Bl., Com., 301. See also Gould’s Pleading.) Where the parties to a cause consent fo a continuance they, by that act agree to *88try the cause before that court, but not at that term. Otherwise a defendant might have a case continued until the plaintiff’s cause of action was barred by limitation and then by interposing mere dilatory pleas dismiss the suit. Appellant complains also that the court imposed upon him the burden of disproving the special plea of appellee. The rule is laid down directly the other way iñ Robertson vs. Ephraim, 18 T., 118, and the burden of sustaining his plea is imposed on the defendant. Although it is not necessary for the decision of the cause, we may remark upon the plea interposed by appelle, that it states “ that before and at the time of the commencement, of this suit- defendant resided in the county of Zavala and not in the county of Uvalde.” The citation issued to Uvalde county, and was served by the sheriff of that county. The plea does not show that defendant did not reside in Uvalde at the date of the service nor does it show where he resided at the date of the filing of the plea. In the case just cited of Robertson vs. Ephraim, 18, T., 118, the plea is in this form: “ That defendant is not now and was not at the time of the filing of said suit a resident citizen of the county of Lavaca, but a resident of the county of Harris. This latter plea seems to follow the old precedents where a party defendant pleaded his privilege of being sued in some particular place or before some particular court. It would seem also to be correct upon principle, for it is held that these pleas of privilege should not only aver fully what is necessary to be answered but should anticipate and exclude all such supposable matter as would, if alleged on the.opposite side, defeat the plea. (Houston and Texas Central R. R. Co. vs. Gram, 50 T., 181. See also 44 T., 304, and Gould’s Pleadings, chap. 3, sec. 57-58.) How suppose that, after the filing of the plea in the case before us, the plaintiff had replied that defendant had removed into the county of Uvalde and was served with process in that county, would not this have defeated the plea? We conclude that the judgment should be reversed and the cause remanded.