Reed v. Garlington, 2821
| Decision Date | 28 July 1950 |
| Docket Number | No. 2821,2821 |
| Citation | 233 S.W.2d 185 |
| Parties | REED v. GARLINGTON et ux. |
| Court | Texas Court of Appeals |
Thomas & Thomas, Big Spring for appellant.
T. B. Coffield and Donald & Donald, all of Bowie, for appellees.
Appellees have filed a motion to dismiss this appeal on the ground that it is not an appeal from an order overruling or sustaining a plea of privilege, permitted by Article 2008, Vernon's Ann.Civ.St., but merely an attempt to appeal fron an order striking out appellant's plea of privilege. The order appealed from recited that appellant had previously answered and, therefore, the plea of privilege had been waived and was not timely filed and that the motion to strike should be sustained 'for such plea of privilege is without merit.'
Article 2008 provides that either party may appeal from a judgment sustaining or overruling a plea of privilege. Although the order appealed does not use the word 'overruled' it had the effect of finally disposing of the plea of privilege. The effect of the order was to overrule the plea of privilege. Webster's Revised Unabridged Dictionary defines overruled thus: '(Law) To supersede, reject, annul or rule against.' The order of the trial court certainly rejected and ruled against appellant's plea of privilege. Giving effect to substance rather than form, appellant's plea of privilege was overruled because the court found he had waived the right to assert such privilege by previously answering to the merits.
In Southport Petroleum Co. v. Carter, 139 Tex. 661, 165 S.W.2d 85, the Commission of Appeals in an opinion adopted by the Supreme Court assumed that a defendant had the right to appeal from an order 'dismissing' his plea of privilege after sustaining plaintiff's exceptions thereto.
In Leyendecker v. Harlow, 189 S.W.2d 706 (R.W.M), the trial court held a defendant had waived his right to assert a plea of privilege by filing an answer to the merits, and dismissed the plea of privilege. The Court of Civil Appeals held that such an order of dismissal was appealable and that defendant could not present such action as error on an appeal from a judgment on the merits.
In Pass v. Ray, Tex.Civ.App., 44 S.W.2d 470, a plea of privilege was dismissed because the trial court held defendant had waived it. The Court of Civil Appeals held that defendant had the right to appeal from the order dismissing his plea of privilege.
The motion to dismiss is overruled.
In June, 1948, J. S. Garlington and wife, Jennie Lou Garlington, instituted this suit in Howard County against N. H. Reed and A. L. Wasson in trespass to try title to four sections of land. Defendants filed a plea in abatement alleging that J. S. Garlington was a person of unsound mind and not competent to maintain the suit without a guardian ad litem or next friend. Also, at the same time, defendants filed a motion for costs, a plea of res judicata and an answer on the merits. Thereafter defendants filed a petition and bond for removal of the cause to the United States District Court. Before the cause was remanded to the state courts, defendants filed a pleading designated 'Special Exceptions and Pleadings' in the state court. The cause was thereafter remanded from the United States District Court to the District Court of Howard County. After the filing of the various pleadings as above indicated, defendant Reed filed his plea of privilege to be sued in the county of his...
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Texas Securities Corp. v. Peters
...1954, no writ hist.); Ware v. Texboro Cabinet Corporation, 350 S.W.2d 47 (Texarkana, Tex.Civ.App., 1961, writ dism.); Reed v. Garlington, 233 S.W.2d 185 (Eastland, Tex .Civ.App., 1950, no writ hist.); Corsby v. Heldt Bros. Trucks, 394 S .W.2d 235 (San Antonio, Tex.Civ.App., 1965, no writ hi......
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Crosby v. Heldt Bros. Trucks, 14403
...Texboro Cabinet Corp., Tex.Civ.App., 350 S.W.2d 47, wr. dism.; Chapa v. Cox, Tex.Civ.App., 271 S.W.2d 486, no wr. hist.; Reed v. Garlington, Tex.Civ.App., 233 S.W.2d 185, no wr. On January 14, appellant filed only her plea in abatement seeking to have the suit dismissed. Under the rule esta......
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Foster v. H. O. Wooten Grocer Co.
...did not err in 'overruling and striking' them from the record. Holt v. Farmer, Tex.Com.App., 56 S.W.2d 633, 638; Reed v. Garlington, Tex.Civ.App., 233 S.W.2d 185, 186; 43 Tex.Jur. 792; Leyendecker v. Harlow, Tex.Civ.App., 189 S.W.2d 706, 709 Appellants' second point is that the court erred ......
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City of Orange v. State ex rel. City of Port Arthur, 7135
...had the effect of overruling such plea .' See also, Southport Petroleum Co. v. Carter, 139 Tex. 661, 165 S.W .2d 85 (1942); and Reed v. Garlington, 233 S.W.2d 185 (Eastland Civ.App., 1950, no writ). In the latter case (233 S.W.2d at 186), the court said: 'Giving effect to substance rather t......