235 S.W. 632 | Tex. App. | 1921
All of these matters are admitted by appellant, but he contends that appellee had *633
waived his plea by not calling the attention of the court to the plea at the February term of the Fifty-Seventh district court of Bexar county. The cause was filed after the February term had begun, and appellee was cited to appear at the April term. Appellee filed his plea of privilege on March 24, 1921, and the April term began on April 4, 1921, and on April 8 appellant moved to strike out the plea of privilege, on the ground that it had not been called to the attention of the court, nor any order made in connection with it, during the February term of the court, and that it was thereby waived. The motion to strike out was overruled, and the plea of privilege sustained. In the judgment of the court it is recited that said plea of privilege was "duly called to the attention of the court before the calling of the appearance docket for the April term, A.D. 1921." The plea of privilege was not waived by a failure to call it up for action at the February term of the court. Appellee was cited to appear at the April term, and did not waive any right by failing to demand action on his plea until the April term. No controverting affidavit was filed, and appellee was entitled to a change of venue on his verified plea of privilege. Brooks v. Elevator Co.,
There was no continuance of this cause at the February term of the district court, because that term had nothing to do with it, as it was an appearance case at the April term, and the cause could not be heard until that term. The April term was the first term after the suit was filed.
The judgment is affirmed.