Summary
In McCay v. Arnold Company, 328 S.W.2d 890 (Tex.Civ.App., Waco 1959, no writ), the appellant complained of the order overruling its plea of privilege and of the refusal of the trial court to rule on their motion to dismiss, urged prior to the determination of the plea of privilege and based, as here, on evidence adduced at the hearing on the plea of privilege. Justice Wilson said, "By invoking the action of the court on the motion, appellants waived the plea.
Summary of this case from First State Bank & Trust Co. of Rio Grande City v. ColpaughOpinion
No. 3667.
November 5, 1959.
Appeal from the County Court at Law No. 2, Dallas County, Julien C. Hyer, J.
Wilson F. Walters, Denison, for appellant.
Curtis White, John Fox Holt, Dallas, for appellee.
In this case appellants complain (1) of order overruling their plea of privilege, and (2) of the refusal of the trial court to rule on their motion to dismiss, filed and urged prior to the determination of the plea, based on evidence adduced in the hearing of the plea of privilege. The motion contains no reference to the plea.
By invoking the action of the court on the motion, appellant waived the plea. O'Neal v. Texas Bank Trust Co., 118 Tex. 133, 11 S.W.2d 791; Barrett v. Cheatham, Tex.Civ.App., 281 S.W.2d 761; Rule 84, Texas Rules of Civil Procedure. The failure of the trial court to act on the motion to dismiss, as urged, is not subject to review by appeal. 3 Tex.Jur.2d, Sec. 63, p. 328. Affirmed.