Torno v. Cochran

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Torno v. Cochran, 201 S.W. 735 (Tex. App. 1918)
• Decision Date: 27 February 1918
• Docket Number: (No. 5985.)
• Parties: TORNO v. COCHRAN.

201 S.W. 735

TORNO v. COCHRAN.

(No. 5985.)

Court of Civil Appeals of Texas. San Antonio.

February 27, 1918.

Rehearing Denied March 20, 1918.

Appeal from San Patricio County Court; M. A. Childers, Judge.

Suit by C. J. Torno against John D. Cochran. From an order granting defendant's plea of privilege, plaintiff appeals. Reversed and remanded.

Jno. A. Jones, of Sinton, for appellant. James G. Cook, of Sinton, for appellee.

FLY, C. J.

Appellant sued appellee in San Patricio county to recover damages arising from a failure to properly "grub" certain land as he had contracted to do. A plea of privilege to be sued in Bexar county was sustained by the court, and the cause ordered to be transferred to that county.

The plea of privilege was filed at the February term of the county court, and was continued by agreement to the May term of the court; the order of the court reciting that the continuance was had "without prejudice to right of defendant to plea of privilege to be sued in Bexar county, Texas." This action did not constitute a waiver of the plea of privilege, and it was sustained at the May term. In a case in which was an order almost identical with the one stated, this court held that the agreement to continue was not a waiver. Dorroh v. McKay, 56 S. W. 611. The opinion was approved by the Supreme Court. There are other decisions to the same effect. Blum v. Strong, 71 Tex. 322, 6 S. W. 167; Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224; Johnson v. Waggoner, 190 S. W. 835. The first assignment of error is overruled.

On the day after the plea of privilege was filed, the court entered on his docket, "Rule for costs invoked by defendant," which was not carried into the minutes; but at the August term of the court, succeeding the May term at which the plea of privilege was sustained, a motion was made by appellant for an entry on the minutes nunc pro tunc of the entry of the court on his docket as to the rule for costs being invoked, and the...