
    WOOD v. YOUNG.
    (No. 1758.)
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 8, 1928.
    Ramsey & Minton, of San Augustine, for plaintiff in error.
    Bogard & Anderson, of San Augustine, for defendant in error.
   O’QUINN, J.

We shall refer to defendant in error as plaintiff and to plaintiff in error as defendant, that being their attitude in the trial court.

Young sued Wood in the county court of San Augustine county to recover in the sum of $200, alleged to be due him as a commission of 5 per cent, on a sale .of certain real estate situated in said county, and for interest on said sum in the nature of damages from December 24,1926, the date of the alleged sale of the property, to the date of the trial of the case, averring he had been damaged in the sum of $250, and by , amended petition also sued for $20 attorney’s fees as for personal services rendered defendant.

Service was perfected for the November, 1927, term of the court. Wood, the defendant, appeared and in due tíme filed his plea of privilegé to be sued in tbe county ■ of bis residence, wbieb be alleged was Harris county. Plaintiff filed bis controverting affidavit to- tbe plea, asserting that the suit was based upon a cqntraet in writing to be performed in San Augustine county. It appears that tbe plea was not heard at this term of tbe court, but was passed to tbe next (February) term without prejudice by agreement of tbe parties. At tbe February term, 1928, tbe cause was ’ regularly reached on March 9th, and defendant’s plea of privilege was beard and overruled. Thereupon defendant requested leave to file a plea (which was already prepared) to tbe jurisdiction of tbe court, based upon the amount involved, contending that tbe amount in controversy was only $200, wherefore tbe court was without jurisdiction to bear and determine tbe matter. Plaintiff, Young, objected to tbe filing of tbe plea because sam§ came too late after tbe plea of privilege ’ and not in tbe due order of pleading. Tbe court sustained this objection, to which defendant excepted. According to the judgment shown in tbe transcript, tbe parties then announced ready for trial on tbe merits, and tbe case was tried before tbe court, and judgment entered in favor of plaintiff for $200, together with 6 per cent, interest thereon from December 24, 1926, to tbe date of tbe judgment, and costs of suit. Defendant excepted to said judgment, and tbe ease is before us for review on writ of error.

Defendant’s first proposition complains that the court erred in admitting certain oral testimony given, in connection with and explanatory of tbe alleged written contract upon which tbe suit was based. Tbe testimony was admissible.

Tbe second proposition complains that tbe court erred in overruling defendant’s plea of privilege. Tbe alleged written contract consisted of correspondence between tbe parties relative to tbe matters giving rise to tbe suit. Tbe letters of defendant amply support plaintiff's contention of a contract to be performed in San Augustine county. The plea was properly overruled.

Tbe third proposition complains that tbe court erred in refusing to permit defendant to file bis plea to tbe jurisdiction of tbe court after tbe plea of privilege bad been overruled. Tbe court sustained plaintiff’s objection to tbe filing and consideration of tbe plea on tbe ground that it came too late — not filed in due order of pleading — that it should have been presented before tbe plea of privilege. There are authorities to sustain the court’s ruling, but as tbe plea in abatement went to tbe jurisdiction of tbe court to bear' the controversy by reason of tbe amount involved, we think it could have been beard at any time during tbe progress of , tbe suit. However, the' exact question is settled by tbe Supreme Court in tbe case of Benson v. Ful-more, 269 S. W. 71, where it approved an opinion by tbe Commission of Appeals, in which it is held that a defendant is entitled to have bis plea of privilege to be sued in the county of bis residence passed on before tbe court takes any other action, and that a plea in abatement is not waived because not filed before tbe plea of privilege. Therefore, tbe court should have permitted tbe defendant to file bis plea, but we do not think reversible error is shown because of bis not doing so. Plaintiff’s petition on its face showed that tbe court did have jurisdiction. Plaintiff sued to recover $200 and interest thereon as damages. That gave tbe county court jurisdiction. Schula v. Tessman & Bros., 92 Tex. 488, 49 S. W. 1031; Gulf, W. T. & P. R. Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054; Robinson v. Lingner (Tex. Civ. App.) 183 S. W. 850. Under tbe law tbe court must have overruled tbe plea to tbe jurisdiction, and hence tbe error in refusing to permit same to be filed and considered was harmless.

Tbe fourth proposition asserts that tbe court erred in refusing to grant defendant time to prepare and file bis answer to the merits of tbe case. He says in bis brief ' that tbe request for time to prepare and file bis answer was made before announcement of ready for trial on tbe merits. Plaintiff in bis brief says that there were two announcements of ready, one before taking up tbe plea of privilege and one after its being overruled, and that tbe request was made after the announcement of both parties of ready on the merits. We do not feel called on to settle this difference between tbe parties. As before stated, tbe judgment recites as a fact that after the plea of privilege was beard and overruled, tbe parties plaintiff and defendant announced ready for trial on tbe merits of tbe case, and that same was then tried to tbe court. This recital of fact is in no way ■ attacked by defendant. We must be controlled by the record shown' in tbe recitals in tbe judgment. We do not believe that tbe court erred in bis refusal to grant defendant time to prepare and file bis answer. Tbe bill of exception show's that defendant bad not prepared bis answer before the case was regularly reached on tbe docket and called for trial, but that after same was reached, called, and partly beard, be wanted time to do so. After parties have announced ready for trial, they do not have tbe absolute right to either amend their pleadings or to bold tbe court in suspense to enable them to prepare and file pleadings which they ought to have' previously prepared. Miller v. Sturm, 36 Tex. 291; Crawford v. Johnson (Tex. Civ. App.) 107 S. W. 553. There is no showing as to what defensive matters the answer would have contained. Plaintiff was > entitled to know what matters of defense be would be called upon to meet before announcing ready for trial. Tbe answer "might have contained matter that would have necessitated a replication on the part of plaintiff, which would have further delayed the trial, or such matter as might have required a continuance, when under the circumstances the parties may not have been entitled to such delay. De Witt v. Jones, 17 Tex. 620, 624. It was within the sound discretion of the court as to whether he would delay the trial of the cause to permit defendant to prepare and file belated pleadings, and we do not think any abuse of this discretion is shown in his refusal to do so.

The judgment is affirmed.  