Page 670


111 S.W. 670


COLLIN COUNTY NAT. BANK
v.
TURNER et al.


Court of Civil Appeals of Texas.


June 13, 1908.

Appeal from District Court, Freestone County; L. B. Cobb, Judge.

Action by C. J. Turner and others against the Collin County National Bank. 
Judgment for plaintiffs, and defendant Collin County National Bank appeals. 
Reversed and remanded.

This was a suit brought by C. J. Turner in the district court of Freestone 
county, Tex., against the First National Bank of Wortham, Tex., and the Collin 
County National Bank of McKinney, Tex., alleging that both defendants are 
banking corporations incorporated under the laws of the United States of 
America, the First National Bank of Wortham doing business at Wortham, Tex., 
and the Collin County National Bank doing business at McKinney, Tex.; that in 
due course of business plaintiff C. J. Turner on the 27th day of July, 1905, 
sold two car loads of oats to the Southwestern Grain Company of McKinney, Tex., 
which said oats were loaded into cars and consigned to shipper's order to 
Breaux Bridge, La., and the bills of lading when oats were delivered to the 
railway company for shipment were to have drafts for the price of the oats 
attached to them and then delivered to a bank for collection; that plaintiff 
complied with the terms of sale and loaded the oats into cars of the Houston 
& Texas Central Railroad Company at Wortham, Tex., consigned to shipper's order 
to Breaux Bridge, La., and drew his drafts for the sum of $296.55 and $350.05, 
being the price of the two car loads of oats; that said drafts were drawn 
according to instructions, upon the Southwestern Grain Company at McKinney, 
Tex.; that said oats were of the value of $646.60; that plaintiff, after 
attaching the drafts to the bills of lading, delivered same to the First 
National Bank of Wortham for collection, and at the time instructed said bank 
that the bills of lading were to be surrendered and delivered to said grain 
company only on payment of said drafts; that the First National Bank of Wortham 
accepted the drafts with bills of lading attached for collection, and forwarded 
the same in due course of business to its agent and correspondent Collin County 
National Bank, at McKinney, for collection; that both of said defendants, 
Wortham National Bank and Collin County National Bank, jointly undertook and 
became responsible to plaintiff for the collection of said drafts at Wortham, 
Tex., under plaintiff's said instructions for a valuable consideration, to wit, 
the usual bank exchange on said drafts; that, upon receipt of said drafts and 
bills of lading with plaintiff's instructions from the Wortham Bank, Collin 
County Bank, in disregard and willful violation of plaintiff's instructions, 
detached said bills of lading from said drafts and surrendered them to the said 
grain company, without requiring payment, and knowingly received and accepted 
said bills of lading with drafts of said Southwestern Grain Company, upon their 
customer at Breaux Bridge, La., for the selling price of said oats, for 
collection, and forwarded such drafts with bills of lading attached to its 
correspondent at Breaux Bridge, La., for collection, purposely disregarding and 
violating plaintiff's instructions, and in all such transactions concerning the 
said drafts and bills of lading said defendants acted together; that both 
defendants knowingly and willfully violated and disregarded plaintiff's said 
instructions; that, had defendants obeyed plaintiff's instructions to demand 
and require immediate payment of drafts before the surrender and delivery of 
bills of lading, said drafts could have been collected, and would have been 
paid, and because of such violation of instructions plaintiff has been damaged 
by the negligence and default of defendants, and the defendants are liable to 
plaintiff in the sum of $646.60, with legal interest. On the 3d day of 
September, 1906, defendant, Collin County National Bank, filed its plea of 
privilege, and simultaneously filed general and special exceptions to 
plaintiff's petition, and a motion to continue to make parties defendant in the 
event said defendant should be held to answer in this cause in said court. On 
September 4, 1906, plaintiff filed his motion to strike out defendant's, Collin 
County National Bank, plea of privilege, which motion coming on to be heard on 
the 4th day of September, 1906, was sustained by the court on the ground that 
defendant, Collin County National Bank, had answered to the merits, and said 
defendant excepted in open court. Then came on to be heard said defendant's 
exceptions to plaintiff's petition, and, same being overruled by the court, 
defendant excepted in open court. Then came on to be heard defendant's motion 
to continue to make parties defendant, which motion was overruled by the court, 
and defendants excepted and were then granted time to file an answer, and the 
case

Page 671

set down for trial on the 16th day of September, 1906. On the trial before the 
court without a jury on September 16, 1907, judgment was rendered in favor of 
plaintiff C. J. Turner against the First National Bank of Wortham, making final 
a default judgment for $646.60, with interest at 6 per cent. from July 27, 1905, 
and further the sum of $89.91, and also that C. J. Turner have and recover of 
and from First National Bank of Wortham, Tex., and the Collin County National 
Bank of McKinney, Tex., jointly and severally the sum of $646.60, with interest 
at 6 per cent. from July 27, 1905, and all costs, and that the First National 
Bank of Wortham do have and recover of and from defendant Collin County National 
Bank said amount of $646.60, with interest hereon from July 27, 1905, and all 
costs. Appellant excepted to the judgment, and perfected an appeal to this court.

Boyd & Boyd, for appellant. Daviss & Williford, for appellees.

BOOKHOUT, J. (after stating the facts as above).

Appellant complains of the court's action in sustaining plaintiff's motion to 
strike out its plea of privilege to be sued in Collin county. The appellant 
filed its plea of privilege to be sued in Collin county, general and special 
exceptions, and a motion to continue to make new parties in the event defendant 
should be held to answer. These pleas were each on separate sheets of paper, 
each indorsed with the number and style of the suit, and all filed at the same 
time, to wit, September 3, 1906. The appellee contends that by filing the 
demurrers and the motion to continue and make new parties at the same time with 
the filing of its plea of privilege constituted a voluntary submission by 
appellant to the jurisdiction of the court. Article 1262 of the Revised Statutes 
of 1895 provides that "the defendant in his answer may plead as many several 
matters, whether of law or fact, as he shall think necessary for his defense, 
and which may be pertinent to the cause; provided, that he shall file them all 
at the same time, and in due order of pleading." Rule 7, for the district and 
county courts (67 S. W. xx), provides that the original answer "may consist of 
pleas to the jurisdiction, in abatement, of privilege, or any other dilatory 
pleas; of exceptions, general and special; of general denial, and any other 
facts in defense by way of avoidance or estoppel, the same being pleaded in the 
due order of pleading as required by statute." It is held by the court for the 
second district that exceptions to the citation are not waived by at the same 
time, and on the same paper filing a plea to the merits. Pyron v. Graef, 31 Tex. 
Civ. App. 405, 72 S. W. 101. The three papers filed by appellant constituted 
the original answer of appellant, and the fact that they were on separate 
sheets of paper did not affect the matter. So long as they were filed at the 
same time, they were filed in due order of pleading within the meaning of the 
statute. The appellant did not waive its plea of privilege, and submit itself 
to the court's jurisdiction by filing at the time of filing its said plea a 
plea to the merits and a motion to continue the case to make additional parties 
in the event it should be held to answer. It follows that the trial court erred 
in sustaining appellee's motion to strike out the plea of privilege.

The judgment is reversed, and the cause remanded.