ABC Rendering, Inc. v. Martin

407 S.W.2d 551, 1966 Tex. App. LEXIS 2520

Opinion

OPINION

McDONALD, Chief Justice.

Plaintiffs Martin and wife, alleging commission of a nuisance, sued defendants ABC Rendering, Inc. and Linn Mark Company, in Coryell County for injunction and damages. Defendants filed pleas of privilege to be sued in Harris County; plaintiffs controverted; and after hearing the trial court overruled such pleas of privilege. Defendants appealed to this court from the orders of the District Court overruling their pleas of privilege. Pending the appeal in this court, plaintiffs filed motion in the trial court to take a nonsuit. The trial court granted such motion and dismissed the cause without prejudice to the rights of plaintiffs, and taxed all costs against plaintiffs.

Plaintiffs have made motion in this court to dismiss defendants’ appeal from the order overruling pleas of privilege on the ground that the questions presented by such appeal are moot.

During the pendency of appeal from order overruling pleas of privilege, the trial court possesses authority to permit non-suit at instance of the plaintiff, since the power of the trial court to try the case on the merits was not suspended during pen-dency of appeal from such order. And the question of whether the trial court erred in overruling the pleas of privilege is now moot in this court. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331; Gladden v. Thurmond, CCA (n. w. h.) 77 S.W.2d 703; Knapp v. Knapp, CCA (n. w. h.) 375 S.W.2d 359; Bray v. Compton, CCA (n. w. h.) 376 S.W.2d 436.

Motion granted and appeal dismissed. Costs taxed against appellees.

Appeal dismissed.