
    MILLER et al. v. KOUNTZE CORPORATE SCHOOL DIST. et al.
    No. 2051.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 19, 1931.
    Rehearing Denied March 4, 1931.
    Howth, Adams & Hart, and Elton Cruse, all of Beaumont, for appellants.
    Oswald S. Parker, of Beaumont, and Jas. F. Parker, of Kountze, for appellees.
   WALKER, J.

The plaintiffs are E. J. Miller and J. H. Yentzen. The defendants are: (1) Kountze Corporate School District (sometimes called Kountze Independent School District), which is incorporated under the laws of the state of Texas and has all the powers of such a corporation; (2) J. B. Hooks (president of said Kountze Corporate School District, or president of the board of trustees of said school district), and Thos. B. Coe, Bud Hooks, Nick Matthews, Frank Crews, James F. Parker, J. C. Alsup, and W. R. Robertson, all members, of said board of trustees, and all of the foregoing parties being sued in their capacity as officials of said Kountze Corporate School District and individually; (3) J. O. Fountain, former president of the defunct Hardin County State Bank; (4) E. M. Pitts, E. D. Adams, and L. M. Adams, sureties on a certain depository bond executed by tbe Hardin County State Bank for tbe purpose of guaranteeing tbe safety of tbe proceeds of school building money; and (5) W. B. Livesay and N. E. Wiedmann. Tbe two defendants last named were and are residents of Jefferson county, J. C. Alsup-was a resident of Harris county, and tbe remainder of said defendants were and are residents of Hardin county.

As plaintiffs, appellants filed tbis suit against appellees as defendants on October 22, 1928, in Jefferson county, Tex. In January, 1929, plea of privilege filed by appellees was sustained and tbe case ordered transferred to tbe district court of Hardin county. At tbe time tbis order was made, tbe district court of Hardin county was in session. Tbe next term of tbe district court of Hardin coupty convened on May 20, 1929. In tbe meantime, on Eebruary 15, 1929, tbe district clerk of Hardin county, answering an inquiry from appellants in regard to tbis case, wrote: ‘Tbis ease bas not been transferred as yet, that is tbe papers bave not reached tbis office.” On May 9, 1929, tbe district clerk of Hardin county again addressed a note to appellants to tbe effect that tbis case bad “not been transferred, therefore, its not in tbis court.” No effort was made by appellants to transfer tbe case until after adjournment of the May term nor until August 7, 1929, when tbe transfer was perfected.

On June 5,1930, when tbe case, as it was on tbe docket of tbe district court of Hardin county, was called for trial, appellees’ motion to dismiss on tbe ground that appellants bad not exercised due diligence' in transfer-" ring tbe case was presented and in all things sustained. Tbe case was also dismissed on tbe ground that appellants’ cause of action was barred by limitation. Tbe order of dismissal was as follows:

“No. 4981
“E. J. Miller et al. v. Kountze Corporate School District et al.
“June 6th, 1930.
“Defendants Motion to Dismiss and plea of Limitation sustained, to which plaintiffs, in open court, excepts, gives notice of appeal to the Court of Civil Appeals of tbe 9th Supreme Judicial District of Texas, at Beaumont, Texas, and plaintiffs are allowed 80 days in which to file statement of facts and bills of exception.”

• Against tbis order appellants duly filed motion for a new trial, which was overruled. Appellants thus summarize their answer to tbe motion to dismiss, bringing forward tbe facts upon which they sought to justify their delay in transferring tbe ease:

“As appears from plaintiffs’ reply to defendants’ motion to dismiss and tbe exhibits attached thereto, plaintiffs believed that defendants would attend to the securing of tbe transfer of said cause to, Hardin County.
“Although plaintiffs bad until tbe 9th or 10th of Eebruary in which to perfect their appeal from said order of transfer and tbe January term of tbe district court at Kountze ended by provision of law on or prior to Eeb-ruary 2,1929, and although tbe next term did not commence until tbe 20th of May, as shown by Exhibit A and A-l attached to said reply, counsel for plaintiffs wrote both tbe district clerk and tbe district judge, said letters indisputably evidencing tbe fact that plaintiffs were diligently active in attempting to secure a qualified court to try said causfe.
“Though tbe district clerk at Kountze promptly advised that said cause had not then been transferred, be stated in such reply that the matter of having tbe disqualification of Judge Coe certified to tbe Governor so that a qualified judge might-be appointed would be attended to as soon as tbe papers were received by him, counsel for plaintiffs still believed that defendants would secure tbe transfer of said cause and relied upon defendants doing so. It was not until counsel received a copy of tbe settings of cases for the May term that they became aware or bad reason to believe that defendants bad not secured tbe transfer of said cause and counsel also noticed from said settings that no qualified judge bad been assigned to the court at Kountze 'for said May term and that no time was set aside during said term for tbe trial of causes in which Judge Coe was disqualified. In fact tbe record shows ‘that during tbe January, May and August terms, 1929, of tbe District Court of Hárdin County, no, other Judge exchanges benches with Judge Coe, and that Judge Coe presided over tbe district court of Hardin County, Texas, during all of tbe time of all of those terms of tbe district court of Hardin County, Texas.’
“Having finally ascertained, or at least concluded, that defendants did not intend to attend to tbe transfer of said cause, plaintiffs on or about August 17,1929, completed tbe transfer of said cause and though tbe district clerk, in accordance with bis promise previous mentioned, bad Judge Coe, prior to tbe beginning of tbe August term, note bis disqualification therein and further order same to be certified to tbe Governor, said form being tbe one mentioned in plaintiffs’ letter of Eebruary 13, 1929 and having been sent to tbe district clerk at that time, for reasons never known to plaintiff, even to tbis day, tbe Governor did not appoint a qualified judge until April of 1930.
“Several weeks prior to tbe date hereinafter mentioned, at which time counsel for all parties received notice of same, tbis cause was duly set (such setting being tbe first and only setting ever made) for tbe week beginning June 2, 1930, and Judge Geo. O’Brien, who was designated to try said cause, informed counsel that be would take the same up June 5, 1930.”

Opinion.

One of the reasons advanced by appellants for not dnly transferring the ease was as follows, to quote from tbeir brief:

“Plaintiffs believed that defendants would attend to the securing of the transfer of said cause to Hardin County.”

That same excuse was offered by appellants in Hinkle v. Thompson (Tex. Civ. App.) 195 S. W. 311, 316, where Mr. Chief Justice High-tower, overruling appellants’ proposition, said:

“Appellants, in their brief, take the position, by way of argument, at least, that it was as much the duty of appellees, after the order of transfer was made in Harris county, to see that the clerk of that court did his duty by transferring the record to Hardin county, as it was the duty of appellants themselves, for appellants argue that appellees were the ones who secured such order of transfer by interposing the plea of privilege of E. L. Thompson to be sued in Hardin county, and that, such being true, appellees’ counsel should have been as diligent, and used as much care as ought to have been expected of appellants’ counsel in seeing that the transfer was timely and properly made. To this contention we cannot agree, because we think that it was the duty of appellants’ counsel to look after the transfer of this record from Harris to Hardin county, and to see that it was timely and seasonably done, because they represented the plaintiffs in the case, who were the actors in this controversy, and the mere fact that appellees availed themselves of their privilege to be sued in Hardin county, a statutory right, would not carry with it any obligation on their part to see that the transfer was, in fact, made, and that the suit was thereafter prosecuted in Hardin county. We think that such contention on the part of appellants is without any réspectable authority to support it.”

On this authority appellants were guilty of negligence in delaying the transfer of their case.

On the authority of the trial court to sustain appellees’ motion, again quoting from the Hinkle Case, Judge Hightower said:

“There is no question, and appellants admit, that the motion to dismiss was addressed, and properly so, to the sound discretion of the district court of Hardin county, but they contend that that discretion was abused.”

Appellants concede that the motion to dismiss for want of prosecution was addressed to the sound discretion of the trial court, but insist that this discretion was abused on the facts of this case. We do not think so. The case was ready for transfer at the January term, 1929, and appellants have not offered the least excuse for not prosecuting the transfer with diligence to that term, or at the most to the next term of the district court of Hardin county. The law fixes no period of time within which the transfer must be perfected. A proper regard for the orderly business of the courts requires that this transfer be prosecuted with diligence. On that proposition we cannot say that the court erred in dismissing the ease. Chapman v. Gibson (Tex. Civ. App.) 8 S.W.(2d) 711, cited by appellants in support of their brief, is not at all in point. In that case only twenty-one days elapsed from the date of the order of the transfer to its filing in the proper court.

We pretermit a discussion of appellees’ counter proposition supporting the dismissal, on the theory that appellants’ cause of action was barred by limitation. What we'have said, we think, satisfactorily disposes of the appeal.

Affirmed.  