67 S.W.2d 215 | Tex. | 1933
Respondent, Humble Oil and Refining Company, sued relators in a District Court of Harris County. Relators filed pleas of privilege to be sued in Dallas County. Controverting affidavits were filed and a hearing had on the issues thus made, the court taking the matter under advisement. Thereafter the Humble Company filed an amended controverting affidavit, and when the parties appeared for a hearing on that affidavit and before the court announced his decision or what his decision would be on the question of venue, the Humble Company stated in open court that it would take a nonsuit. Whereupon, over the objection of relators, the court entered an order of dismissal. A few days after the entry of such order the Humble Company again filed suit against relators in another District Court of Harris County on the same cause of action.
Relators present a motion for leave to file petitions praying for the issuance of a writ of mandamus directing the district judge to set aside the order of dismissal entered in the first suit and to proceed to judgment in accordance with the issues as made by the pleadings and evidence, contending that after issue is joined by the filing of a plea of privilege and a controverting affidavit it does not lie within the power of the plaintiff to defeat that issue by moving a nonsuit.
1, 3 The motion is overruled, on the authority of Atlantic Oil Producing Co. v. W. T. Jackson, District Judge, et al.,