This suit was instituted by appellee, the state banking commissioner, seeking to recover an assessment which had' been properly levied against appellant on stock which he had owned in the First Guaranty State Bank of Elmo, Tex., and which he had disposed of within less than one year’s time preceding the date the bank had been placed in the hands of the banking commissioner.
The-trial court rendered judgment .in favor of the banking commissioner for $844.-24. Appellant presents only two assignments of error, based alone on the action of the trial court in overruling his special exception to appellee’s petition on the ground that it appears from its allegations that appellee’s cause of action is barred by the two years’ statute of limitation.
Under the record appellant is not in a position to avail himself of the defense of limitation. Appellant’s exceptions were not, as far as the record shows, called to the attention of the trial court, and no action thereon is shown.
It is well settled that the defense of limitation may, where the facts appear upon the face of the pleading, be taken advantage of by special exception, but it is also well settled that, where the judgment of the court is not invoked, and where the court does not act upon the special exception, it is waived.
The answer of appellant to appellee’s suit does not contain a plea setting up limitation. Under these facts, the defense of limitation was waived. Garcia v. Yzaguirre (Tex. Com. App.)
The judgment of the trial court is affirmed.