410 S.W.2d 496 | Tex. App. | 1966
OPINION
Plaintiff Carter sued defendant Slaughter for damages resulting from defendant’s negligent operation of his automobile. Defendant filed pleas of privilege to be sued in Bosque County; plaintiff controverted ; and after hearing the trial court overruled such plea of privilege. Defendant appealed to this court from the order overruling his plea of privilege.
Pending the appeal in this court, plaintiff filed motion in the trial court for a nonsuit. The trial court granted such motion and dismissed the cause without prejudice to plaintiff, and taxed all costs against plaintiff.
In such state of the record, defendant’s appeal from the order overruling plea of privilege is moot in this court.
During the pendency of appeal from order overruling plea of privilege, the trial court possesses authority to permit nonsuit at instance of plaintiff, since the powers of the trial court to try the case on the merits was not suspended during pend-ency of appeal from such order. And the question of whether the trial court erred in overruling the plea of privilege is now moot in this court. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331; Gladden v. Thurmond, Tex.Civ.App. (nwh), 77 S.W.2d 703; Knapp v. Knapp, Tex.Civ.App. (nwh), 375 S.W.2d 359; Bray v. Compton, Tex.Civ.App. (nwh), 376 S.W.2d 436; ABC Rendering, Inc. v. Martin, Tex.Civ.App. (nwh), 407 S.W.2d 551. Appeal is accordingly dismissed at costs of appellee.
Appeal dismissed.
