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RAYMOND DAVILA v. CALLER TIMES PUBLISHING COMPANY (12/18/57)

December 18, 1957

RAYMOND DAVILA, APPELLANT,
v.
THE CALLER TIMES PUBLISHING COMPANY, APPELLEE



Author: Murray

W. O. MURRAY, Chief Justice.

The Caller Times Publishing Company, appellee in the above entitled and numbered cause, has filed a motion to dismiss the appeal because the record was not filed in this Court within the twenty-day period provided for by Rule 385, Texas Rules of Civil Procedure.

Raymond Davila instituted this suit in the 111th District Court of Webb County against The Caller Times Publishing Company of Corpus Christi, Nueces County, Texas, seeking to recover damages for an alleged libel of himself by defendant. The defendant filed a plea of privilege to be sued in Nueces County, and a hearing was had on October 11, 1957, when the plea of privilege was sustained by the court. On October 15, 1957, the trial court signed and filed an order sustaining the plea of privilege and ordering the cause transferred to Nueces County. The record was not filed here until November 18, 1957, which was more than twenty days after the rendition of judgment, and came too late under the provisions of Rule 306a and Rule 385, T.R.C.P.

However, the record shows that on October 25, 1957, the trial court made and filed another order in the case, reading as follows:

"On this the 25th day of October, 1957, came Carlos Castillon, one of the attorneys for plaintiff in the above styled cause, and informed the court that the papers in this cause heretofore filed in the District Clerk's office of Laredo, Webb County, Texas, had been transferred to the District Court Clerk in Corpus Christi, Nueces County, Texas, and that it is necessary for plaintiff to exercise his right to appeal the order of this court sustaining defendant's plea of privilege, that said papers be returned to the District Court Clerk of Laredo, Webb County, Texas; and

"This court being of the opinion that proper notice of appeal was given by plaintiff at the time said order sustaining defendant's plea of privilege was rendered by this court; and,

"That the time to file said appeal has not expired and therefore this court still retains jurisdiction of said cause; and

"That the District Clerk of Webb County, Texas, acted prematurely in transferring said cause to Nueces County, Texas;

"It is therefore ordered that the District Clerk of Nueces County, Texas, return all the papers in this cause transferred to him by the Clerk of Webb County, Texas, and that such return be made forthwith.

"/s/ E. D. Salinas

"Judge

"Filed Oct. 25, 1957"

On October 30, 1957, the court entered another order in the cause in which order he set aside his order of October 15, 1957, and made a new order, against sustaining appellee's plea of privilege and again ordering the cause transferred to Nueces County. The new order differed from the order of October 15 in two particulars.

In the second paragraph of the latter order appears the following, which does not appear in ...


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