The opinion
NORVELL, Justice
(dissenting).
Despite some procedural irregularities with reference to plaintiff’s statement of his venue facts, the trial judge apparently had no difficulty in recognizing this as an exception 9a venue case. While he was not required to do so under our Rules of Civil Procedure, the judge filed findings of fact and conclusions of law. He found that on October 17, 1960, the defendant, John S. Leonard, Jr. was operating his automobile “at a greater rate of speed than a person of ordinary care and prudence would have operated it under the same or similar circumstances which was negligence and a proximate cause of (plaintiff) Violet Maxwell’s injuries.” The judge also found that the defendant was guilty of negligence in three additional particulars which were likewise proximate causes of Mrs. Maxwell’s injuries. These findings are not attacked and so far as the substantive law is concerned it would be difficult to say that the Maxwells were not entitled to maintain their action in Travis County, Texas, where their petition was filed. Article 1995, § 9a, Vernon’s Ann.Tex.Stats.
But, we have procedural difficulties. I doubt if any member of this Court believes that, as a matter of substance, the plaintiffs are not clearly entitled to maintain their action in Travis County. What concerns the Court is the effect the decision in the case will have as a precedent. Upon occasion, the failure to observe procedural niceties may result in judicial inaccuracy. In this case, however, I think our course is settled by prior decisions and my disagreement with the opinion of the Court stems from two sources. I do not agree with the Court’s approach to and analysis of the case, and I do not believe the Court has given the proper weight and consideration to the decisions of the Courts of Civil Appeals in this particular field of the law. Except for the exceptions set out in paragraphs 1 and 2 of Article 1728, the decision of the Courts of Civil Appeals are final in plea of privilege cases. Venue in this state, (as well as others — 49 Mich.Law Review 307) has proved a troublesome problem. A survey made by the State Bar Committee on Administration of Justice in 1953 indicated that the full time of one Court of Civil Appeals would be required to dispose of venue appeals under Article 1995, that is, one out of every eleven appealed cases involved a plea of privilege. While a survey of the work of the Courts of Civil Appeals for the years 1951-1958 made by the Texas Civil Judicial Council, 38 Tex.Law Review 725, indicates some improvement, the situation is far from satisfactory. We should not enter this field as a bull in a china shop, overturning decisions of the Courts of Civil Appeals, unless there is a reasonable certainty that we are deciding conflicts in the furtherance of order rather than merely creating more confusion.
The first question which should be explicitly decided by this Court is one upon which there is a clear conflict of decisions between the Eastland Court of Civil Appeals in Brashears v. Strawn National Bank, 57 S.W.2d 177 1 and the Austin Court of Civil Appeals in this case.
The original controverting plea filed in this case which was the only one filed within the ten-day period prescribed by Rule 86 was not made under oath as required by said rule. No change as to the requirement that a controverting plea be made under *347 oath was effected by adopting Rule No. 86 to take the place of Article 2007 from which the rule was taken. In Brashears v. Strawn it was held that:
“Giving full recognition to the fact that a controverting plea may, under certain circumstances,, be amended, it is none the less true that the filing of such a plea, not supported by affidavit, does not raise an issue of venue. A plea lacking in the essential fact of verification is simply without effect. If the controverting affidavit is insufficient and the plea of privilege be not waived, the court acquires no jurisdiction of the person of the defendant except to transfer the case.” 2
The basis of this holding is that under Article 2007 (now Rule 86) when a proper plea of privilege had been filed and not controverted within the time prescribed by law, the party filing the plea had the right to have the case transferred to the county of his residence and the court was without authority to do anything in the case other than to order a transfer. An unsworn plea was a nullity and hence the rule above became operative.
In the present case the Court of Civil Appeals has held that an unsworn plea may be amended and that the pleas subsequently filed were in effect amendments to the controverting plea filed within the ten-day period prescribed by the rules. 3 The un-sworn plea was not regarded as a nullity and the amendments thereto were held to be effective.
This Court is now seemingly in accord with the liberal view expressed by the Court of Civil Appeals that an unsworn plea is not a nullity but subject to amendment.
While I do not believe the Brashears case can be reconciled with the holding of the majority of the Court of Civil Appeals in this case, I would concur in a holding that any controverting plea, no matter how defective and whether sworn to or not, is subject to amendment so long as it may be ascertained from the wording of the plea that the plaintiff is asserting a right to maintain the suit where the same had been filed. Much of the swearing required by our rules relating to pleas of privilege is somewhat incongruous. A lawyer may and usually does swear to the plea of privilege and the opposing lawyer swears to the controverting plea. They both swear to the truth of legal propositions and conclusions and to the existence of facts about which they have no personal knowledge. I am rather forced to the conclusion that the legal requisite of an oath is somewhat formal in nature and I would not regard a defective oath or even the absence of an oath as some special type of defect which is beyond the scope of an amendment.
But having accepted the Court’s holding that the controverting plea is amendable, I cannot concur in the further holding that this cause must be transferred to Dallas County. Assuming for the moment that the amended plea was defective and that the answer and motion to strike (containing two special exceptions to the plea) 4 should have been sustained, then the proper order would be one remanding the case to the trial court with an opportunity to amend. A controverting plea is a pleading and comprehended by Rule 63. The rules set forth *348 in Caperton v. Thorpe, Tex.Civ.App., 240 S.W.2d 329 , no wr. hist., and supported by the authorities therein cited, have application here. On this point I am in agreement with the majority of the Court of Civil Appeals. I would, however, call attention to two cases directly involving defective controverting pleas which this Court, in its opinion, has failed to notice, although they are directly in point and express holdings contrary to that contained in the Court’s opinion. In the interest of clarity of the statement of the law for the benefit of the practicing lawyer, these cases and others expressing similar holdings, should be considered and dealt with.
This Court has held in effect that the trial court erroneously overruled the defendants’ motion to strike and the exceptions therein contained. Its order of rendition is contrary to the practice followed in Texas Acceptance Corporation v. Strickland, Tex.Civ.App., 91 S.W.2d 1179 and Bramblett v. Roby State Bank, Tex.Civ.App., 67 S.W.2d 450 . The Strickland case involved a general demurrer which would be analogous to a motion to strike because of a failure to set up a good defense to the plea of privilege. The Bramblett case involved special exceptions. In both cases the trial court had overruled the demurrer and exceptions. This was held to be error by the Court of Civil Appeals. In other words, the appellate court sustained the demurrer in Strickland and the special exceptions in Bramblett. The plaintiff’s right to amend was, however, recognized. In Strickland the order was:
“For the error of the court in overruling the demurrer to appellee’s controverting affidavit, the cause is reversed and remanded, with directions to tranfer the cause to a district court of Harris county, Tex., unless appellee shall forthwith amend his plea ‘setting out specifically the facts relied upon- to confer venue’ on the district court of Cameron county.”
In Bramblett it was said:
“The evidence, we think, was sufficient to sustain the venue in Fisher county had the controverting pleas been sufficient. Instead of directing a transfer of the case, we will reverse and remand, with direction that, unless the pleas are so amended to state the facts showing that a trespass had been committed, and upon another trial evidence is produced to sustain that issue, the case be transferred to the county court of Taylor county. See Cassidy-Southwestern Commission Co. v. Chupick Bros. (Tex.Civ.App.) 225 S.W. 215 ; Hayes v. Penney (Tex.Civ.App.) 215 S.W. 571 ; Texas & P. Ry. Co. v. Mangum, 68 Tex. 342 , 4 S.W. 617 ; Smith v. Rogers (Tex.Civ.App.) 34 S.W.(2d) 312 ; Meadows & Co. v. Turner (Tex. Civ.App.) 270 S.W. 899 ; Fears v. Fish (Tex.Civ.App.) 218 S.W. 507 ; Mueller-Huber Grain Co. v. Heid Bros. (Tex.Civ.App.) 58 S.W.(2d) 198 ; Olschewske v. Smyth (Tex.Civ.App.) 62 S.W.(2d) 220 ; Sparks v. West (Tex.Civ.App.) 41 S.W.(2d) 301 ; Brown v. Cox (Tex.Civ.App.) 53 S.W.(2d) 848 ; Randals v. Green (Tex.Civ.App.) 258 S.W. 528 ; Scott v. Clark (Tex.Civ.App.) 38 S.W.(2d) 382 .”
See also, McDonald, Texas Civil Practice, § 4.50. The special exception has an important function to serve in the plea of privilege practice. American Casualty & Life Co. v. Robinson, Tex.Civ.App., 220 S.W.2d 204 ; Tolson v. Carroll, 313 S.W.2d 131 ; McDonald, Texas Civil Practice, § 4.49.
There is one other consideration which needs to be discussed and this relates to the doctrine of harmless error under Rule 503 relating to the Supreme Court which provides that “no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the appellate court *349 shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, * * *.”
Both the Strickland and Bramblett cases were decided prior to the adoption of the 1941 Rules of Procedure. Under the rule of Golden v. Odiorne, 112 Tex. 544 , 249 S.W. 822 , the harmless error rule (old rule 62a) was held inapplicable to errors which involved violations of procedural statutes. This was the type of error involved in both Strickland and Bramblett and hence we find no discussion relating to harmless error. While ordinarily the construction of a rule taken from a statute will be given the same construction as that placed upon the statute from which the rule is taken, the effect of repealing the procedural statutes and replacing them with court promulgated rules was to place all rules upon a parity and remove the prior existing statutory domination over court made rules. Hence when two rules constitute a part of the same set of rules they necessarily must be read together. Rule 86 must be construed in connection with Rule 503 just as it was held that Rule 295 must be construed with Rule 434 in Denbow v. Standard Accident Insurance Co., 143 Tex. 455 , 186 S.W.2d 236 . See, Robert W. Calvert, “The Development of the Doctrine of Harmless Error in Texas”, 31 Tex.Law Review 1. Rulings on special exceptions are within the ambit of Rules 434, relating to the Courts of Civil Appeals and 503 relating to the Supreme Court. 4 Tex.Jur. 562, § 940.
In this case, the affidavit to the amended controverting plea effectively covered the allegations contained in the petition. In other words, the affiant swore that the allegations contained in the original petition were true and correct. The petition set forth a cause of action for injuries sustained by Mrs. Maxwell proximately caused by the negligence of the defendant Leonard. The controverting plea designated the venue exception relied upon, that is, Article 1995, § 9a. If the allegations of the petition were not true, the statement of affiant was definite enough to have rendered him liable for a prosecution for perjury.
The failure of the affidavit to clearly cover the allegations of the petition seems to be the primary basis of the decisions in Jefferies v. Dunklin, 131 Tex. 289 , 115 S.W.2d 391 ; Henderson Grain Co. v. Russ, 122 Tex. 620 , 64 S.W.2d 347 and A. H. Belo Corporation v. Blanton, 133 Tex. 391 , 129 S.W.2d 619 . See also, McDonald, Texas Civil Practice, § 4.49. In the Belo case, supra, it rather clearly appears that the pleader was of the opinion that the nature of the suit rather than the factual existence of a libel was the venue fact involved and hence there was no unequivocal statement that the allegations of the petition were true and correct.
The defect then rather boils down to nothing more than this: Although the plea referred to the petition, and it was stated under oath that the allegations therein were correct and the venue exception relied upon was designated, the plea did not employ the magic words, “which (referring to the petition) is hereby adopted and made part hereof.”
To my mind what was said in the plea comes close to an indirect or inferential adoption of the petition as a part of the plea. Jefferies v. Dunklin, supra. When the hearing was held, the parties litigant, as well as the judge, knew the issues involved i. e., the venue facts — and evidence in accordance with such issues was introduced and considered. The fact that the trial judge did not pause in the course of the hearing and allow the plaintiffs to interline the words “hereby adopted and made part hereof” neither misled anyone nor prejudiced the rights of any litigant. It was patently harmless even though the plea without such words did not strictly comply with the requirements of Rule 86. By analogy, the rule of Denbow v. Standard Accident Insurance Co., 143 Tex. 455 , 186 S.W.2d 236 is strictly applicable here. And *350 should it be urged that a holding supporting that of the Court of Civil Appeals should tend toward a liberality which would perhaps permit careless pleading, I would point out that in the particular before us, the choice between the hypertechnical and the liberal viewpoint was made by this Court many years ago — by the adoption of Rule 503, and the decision in the Denbow case.
I would affirm the judgment of the Court of Civil Appeals.
GREENHILL and STEAKLEY, JJ., join in this dissent.
. The Civil Appeals cases cited herein, are for the most part venue cases. Unless otherwise indicated no application for mandamus or writ of error was made to tlie Supreme Court.
. Upon authority of this case it is stated in McDonald, Texas Civil Practice, § 4.50 that:
“The rules (allowing amendment) are subject, however, to an important proviso: if the plaintiff files a purported controverting plea which contains no affidavit, it is a nullity and may not be amended.” Compare, Farmer v. Cassity, Tex.Civ.App., 252 S.W.2d 788 in which the affidavit to the plea failed to show the jurat and signature of the officer administering the oath.
. Article 2007 prescribed five days. Rule 86 now allows ten days in which to file a controverting plea.
. These special exceptions are set forth in the dissenting opinion in the Court of Civil Appeals, 356 S.W.2d 335 .