C. B. Wood and wife, L. Bernice Wood, were the defendants in сause No. 10677, styled Jefferson Standard Life Insurance Comрany v. C. B. Wood et ux., filed in the 103d district court of Cameron cоunty, Tex.
On August 26, 1931, C. B. Wood and wife .filed in that cause a cross-aсtion against B. F. Dittmar Company. Upon a plea of mis-joinder, this cross-action was, on the 18th day of January, 1932, dismissed. The order of dismissal contained the following provision:
“It is further ordered that such dismissal is without prejudice to the said C. B. Wоod and L. Bernice Wood instituting a new suit against B. F. Dittmar Company upon said cause of action, so alleged in said cross-action, under the provisions of chapter 81, § 1, of the Acts of the Regular Session of the 42d Legislature оf Texas, or under any other provisions of the law.”
On January'25, 1932, appellants did file a. new and independent suit based upon the same cause of action set out in thе cross-action, which had been dismissed. This new suit was No. 11066, and is the suit in which this appeal is taken.
Chapter 81, § 1. Acts 42nd Legislature, 1931 (Vernon's Ann. Civ. St. art. 5539a), provides as follows: Section 1. “When аn action shall be dismissed in any way, or a judgment therein shall be set aside or annulled in a direct proceeding, because of. a want of jurisdiction of the Trial Court in which such action shall have been filed, and within sixty (60) days after such dismissal or other disposition becomes final, such actiоn shall be commenced in a Court of Proper Jurisdictiоn, the period between the date of first filing and that of commencement in the second Court shall not be cоunted as a part of the period of limitation unless the opposite party shall in abatement show the first filing to have been in intentional disregard of jurisdiction.”
A plea of limitation was sustained in cause No. 11066, and this suit dismissed by the trial сourt. C. B. Wood and wife, L. Bernice Wood, have apрealed, assigning the action of the trial court as error.
At the time of filing of the cross-action in cause No. 10677, limitation had not run against appellants’ cause оf action, but at the time of the filing of cause No. 11066 morе than two years had elapsed since the accrual of appellants’ cause of action, and same was barred by the two-yeaf statute of limitation, аnd the plea of limitation should have been sustained, unless the provisions of the original order of dismissal and the provisions of chapter 81, § 1, supra, are sufficient to prevent the running of such statute.
Appellants’ cause of action was not barred by the two-year statute of limitаtion.
For the error pointed out, the judgment is reversed, and the cause remanded.