286 S.W. 956 | Tex. App. | 1926
The only question on this appeal is whether the appellant waived and surrendered his right to contest the appellee's plea of privilege by failing to file a controverting affidavit or contest thereof, and having the same set down for hearing and disposition at the term of the court to which the plea was filed. The facts show that the plea of privilege was filed at the March term, 1925, which was a ten-week term. It was filed after a motion to transfer the cause to the federal court had been overruled and before appellant had in any manner attempted to further prosecute his suit. The term to which it was filed continued more than two months thereafter. The case was continued by operation of law at adjournment. The next term of court convened May 11, 1925, at which time appellee urged the court to transfer the case; no contest or controverting affidavit to its plea of privilege having been filed. This was called to appellant's attention, and on May 15, 1925, he filed a controverting affidavit in due form to the plea of privilege; but the trial judge refused to consider it because it had not been filed at the first term of court to which the plea of privilege was filed, on the theory that his court had lost jurisdiction under authority of Davis v. Southland Cotton Oil Co. (Tex.Civ.App.)
Appellant's counsel admits that that case disposes of the question against the contention here made, but contends that it does not correctly declare the law, for the reason that appellant should have been allowed to file his contest of the plea of privilege at any time before the court had made a final order transferring the case. We are of the opinion that the Court of Civil Appeals at Dallas has correctly disposed of this question, and we find it unnecessary to go into an extensive discussion of it, but cite that case *957
as authority for our decision. We also cite as bearing upon this question the following authorities: Craig v. Pittman (Tex.Com.App.) 250 S.W. 667; Shumacher v. Dolive,
Appellant contends, however, that the case of Davis v. Southland Cotton Oil Co., supra, is in direct conflict with the case of Witt v. Stith (Tex.Civ.App.)
There are no extenuating circumstances or equities in this cause which would entitle this court to go into a consideration of whether a contest of a plea of privilege might under certain circumstances be filed to a succeeding term of the court.
The judgment of the trial court will be affirmed.
Affirmed.