Opinion
No. 187.
April 7, 1966.
Appeal from the 36th District Court, San Patricio County, John Miller, J.
Bell, Gwin Furse, by Lawrence P. Gwin, Bay City, for appellants.
Mandell Wright, by John N. Barnhart, Houston, for appellee.
This is an appeal from an order overruling appellants' pleas of privilege. Appellants are two of five defendants sued in this cause, the other three not being parties to this appeal.
Appellants have filed a motion to dismiss the cause from the docket of this court, stating that all matters in issue between the parties plaintiff and defendants have been settled, and final agreed judgment has been entered in the trial court. The trial court was duly authorized to enter such decree, since the rule is well established that where a plea of privilege is Overruled, and appeal is taken, the trial court retains jurisdiction during such appeal to proceed to trial on the merits. Allen v. Woodward, 111 Tex. 457, 239 S.W. 602, 22 A.L.R. 1253; Smith v. Crockett Production Credit Association, Tex.Civ.App., 372 S.W.2d 956, writ ref. n.r.e.; Ricks-Maguire Company v. Oliver, Tex.Civ.App., 376 S.W.2d 434. In view of the agreed judgment, the case pending in our court on the venue issue has become moot, and an order dismissing the appeal will have no effect upon the finality of the judgment. Appellants' motion is granted, and the appeal is ordered dismissed at appellants' costs.
Appeal dismissed.