Reed v. Garlington ( 1950 )

PER CURIAM.

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 from 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.