
    HOLLAND et al. v. STARK.
    (No. 9508.)
    
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 3, 1926.
    Rehearing Denied March 13, 1926.)
    Judgment <&wkey;ll43(l2) — Nonresident defendants held diligent in trying to ascertain when transcript would be filed in court to which venue was transferred, and hence entitled to have-default judgment set aside on failure to plead.
    Nonresident defendants, granted change of venue on plea of privilege filed before they were required to answer, held to have been diligent, through counsel, in trying to ascertain from district clerks of counties, from and to which case was transferred, when transcript would be filed in district- court of latter county, and hence entitled to have default judgment set aside and new trial granted, as they could not file answer until record was filed in such court.
    Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
    Action by J. Charles Stark against W. M. Holland and others. Judgment for plaintiff, and from an order overruling a motion for rehearing, defendants appeal.
    Reversed and remanded.
    Eugene De Bogory, of Dallas, for appellants.
    John White, of Dallas, for appellee.
    
      
      Writ of error dismissed for want of jurisdiction April 20, 1926.
    
   JONES, C. J.

The facts of this case are as-follows:

Appellee Stark received personal injuries while attending a tent show in the town of Royse, Rockwall county, Tex., by the collapse-of some elevated seats. The show was operated under the name of Holland-Lee Players, and appellee alleged in his second amended original petition that the show was owned by a partnership consisting of Harve Holland, Herbert Holland, Berin Holland, residing in-Rockwall county, Tex., D. B. Holland, residing in Ellis county, Tex., and W. M. Holland, residing in Dallas county, Tex. The petition-contained allegations of negligence causing the injury to appellee. The suit was filed in the district court of Dallas county, and it was alleged in the original petition that W. M. Holland was the sole owner. Later an-amended petition was filed in said court in which the other appellants were made parties under allegations tliat they were joint owners of said show. The other appellants were required to answer on September 1, 1924. W. M. Holland filed an answer consisting of a general demurrer and a general denial. On August 14, 1924, the other appellants filed their plea of privilege; D. B. Holland waiving his right to be sued in Bilis county in favor of the other appellants. This plea of privilege merely contained the usual statutory allegations for a valid plea of privilege. Ap-pellee filed his controverting plea on September 15,1924, alleging that there was alleged a joint cause of action against all of the appellants, and that, as W. M. Holland resided in Dallas county, Tex., venue of the suit was properly laid in that county. To this controverting plea, the nonresident appellants filed an amended plea of privilege controverting appellee’s claim, of a joint cause of action, and alleging that this claim was fraudulently made for the purpose of securing venue in Dallas county. The issue thus made was tried in- the district court of Dallas county on September 27,1924, with the result that the amended plea of privilege was sustained and the cause transferred to Rockwall county. At the time the venue was changed to Rockwall county, W. M. Holland was the only appellant who had filed an answer to the merits of the suit.

Appellants’ counsel requested the district clerk’s office of Dallas county to notify him at once when appellee gave an order for the transcript jjf the case preparatory to sending it to Rockwall county, and he promised to do so. Said counsel, on the 2d day of October, wrote the clerk of the district court of Rock-wall county, giving the style of the case, and stating that the venue had been changed to his county, and requesting that he at once notify him as soon as'the transcript of the record should be received. About this time said attorney also, asked the district clerk of Dallas county if the papers had been sent, and received the information that they had not been, and would not be sent until the costs were paid.

The clerk of the district court of Dallas county, later, and at the request of appellee, made up the transcript of record, and sent it to the district clerk of Rockwall county, where it was received and filed on October 13, 1924, the first day of the term of the district court of Rockwall county. On the' 27th of October, 1924, appellants’ attorney again inquired of the district clerk of Dallas county whether the record of the case had been sent to Rockwall county, and was informed that it.-had been sent some days previous. Said attorney immediately called by telephone the district clerk of Rockwall county, and ascertained from him that the record had been received and filed in the district court on September 13, 1924, and that judgment by default had been taken against all of the appellants except W. M. Holland, with a writ of inquiry; that on the same day the writ of inquiry was perfected a judgment had been entered' against all of the appellants. It also developed that said clerk had intended to comply with appellants’ request to notify their attorney, when the papers were filed, but had not done so, because he had lost the address of the attorney..

A motion for a new trial was prepared and filed, which alleged all these facts, and the additional fact that the attorneys for appel-lee and for appellants resided in the city of Dallas and practiced law in said city; that there existed a custom among the attorneys of said city that, before a case was called peremptorily for trial, the attorney demanding the trial would notify the attorney on the other side that this custom was necessary because of the large number of courts in the city of Dallas; that attorneys for appellants relied on this custom, and also relied on the promise made by> the district clerk’s office of Dallas county, and upon the' request made of the district clerk of Rockwall county as to when the record would be filed in the district court of Rockwall county, to file answers to the merits of the case in said court, and that said attorneys were not guilty of negligence because of the fact that answers were not promptly filed in said cause. In addition to said allegations, the motion for rehearing alleges a valid defense' to the suit by all of the appellants, except Harve Holland, who is alleged to have been the sole owner and proprietor of said show. It is also alleged that the fact of ownership was fully established on the hearing of the plea of privilege, and that the establishment of this fact was the cause of the change of venue.

The second amended petition was filed in the case on the day the judgment was taken. A jury was called to assess the damages, and the only issue submitted to the jury in respect to all of appellants was the amount of damages to be assessed. The court overruled the motion for rehearing, and appellants have duly perfected their appeal. No brief has been filed in the cause by appellee.

We are of the opinion that the court erred under the showing made in refusing to grant the motion for a new trial. At the time the pleas of privilege were filed, none of the appellants who had been made parties by the first amended petition were required to answer, and they were not guilty of any negligence in failing to file an answer subject to the plea of privilege. After the pleas of privilege were sustained, and the venue of the case was changed, appellants could not legally file an answer until the record was filed in the district court of Rockwall county. Hutchinson et al. v. Robt. Hamilton & Son et al. (Tex. Civ. App.) 234 S. W. 417. Appellants, through their attorney, were diligent in trying to ascertain when the record would be filed in said county. It was the duty of appellee to order the transcript of the record and to secure its filing in said county, and it was in no way the duty of appellants to have this done. We are, therefore, of the opinion that appellants were entitled to have the judgment by default set aside *in order that they could have a hearing on the merits of their defense, for which reason the case is reversed and remanded.

Reversed and remanded. 
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