McCay v. Arnold Company

328 S.W.2d 890 (1959)

W. A. McCAY et al., Appellants,
v.
ARNOLD COMPANY, Inc., Appellee.

No. 3667.

Court of Civil Appeals of Texas, Waco.

November 5, 1959.

Wilson F. Walters, Denison, for appellant.

Curtis White, John Fox Holt, Dallas, for appellee.

WILSON, Justice.

In this case appellants complain (1) of order overruling their plea of privilege, and (2) of the refusal of the trial court to rule on their motion to dismiss, filed and urged prior to the determination of the plea, based on evidence adduced in the hearing of the plea of privilege. The motion contains no reference to the plea.

By invoking the action of the court on the motion, appellants waived the plea. O'Neal v. Texas Bank & Trust Co., 118 Tex. 133, 11 S.W.2d 791; Barrett v. Cheatham, Tex.Civ.App., 281 S.W.2d 761; Rule 84, Texas Rules of Civil Procedure. The failure of the trial court to act on the motion to dismiss, as urged, is not subject to review by appeal. 3 Tex.Jur.2d, Sec. 63, p. 328. Affirmed.