"A special appearance is unknown to our practice. The filing by a defendant of any defensive pleading, though it be only for the purpose of challenging the jurisdiction of the court, constitutes an appearance and a submission to the jurisdiction of the forum.”
How later courts described this case
- "A special appearance is unknown to our practice. The filing by a defendant of any defensive pleading, though it be only for the purpose of challenging the jurisdiction of the court, constitutes an appearance and a submission to the jurisdiction of the forum.”
Written by the judges who cited it.
The opinion
Mr. Justice HAWKINS
delivered the following concurring opinion:
I concur, heartily, in the foregoing opinion, excepting only the final clause thereof, “as the plaintiff may elect.” That quoted language probably is harmless as applied to the case at bar inasmuch as defendants, in their plea of privilege, ask to have the cause transferred to any one of five enumerated counties, as plaintiff may elect; but, in so far as it may be understood or applied in practice as enunciating a general rule, it constitutes, it seems to me, an unwarranted invasion by this court of the province and function of the trial court as defined in Revised Statutes, article 1833, which declares “If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer such cause to the court having jurisdiction of the person of the defendant therein.”
The effect of that statute as applied to cases of this character, wherein a railroad company legally is suable in more than one forum, is, I think, to confer upon the trial court, rather than upon any party to the litigation, the right to determine to what court the cause shall be transferred ; and, if that be correct, the matter is one- which this court has no- power or authority to control.
It is true that thus giving to the plaintiff the option of choosing the forum to which the cause is to be transferred has the practical effect of preserving his original right of selecting the tribunal in which his cause is to be tried, and that argument, if addressed to the Legislature, certainly would have force; but our above mentioned transfer statute seems to me to treat the matter differently, and, to assume that, having filed his cause in an improper tribunal, the plaintiff waived his statutory privilege of choosing the forum; and thenceforth the analogies carried by our other change of venue statutes, Revised Statutes, articles 1911,1912,1913, 1914, and Penal Code, articles 626, 627, 628, 629, 632, wherein, except as otherwise stipulated, the discretion and option of selecting the new forum to which the cause is to be transferred devolves upon the trial court, are more applicable.
Reversed and remanded with directions.