Saulsbury v. Atlas Supply Co.

STOKES, Justice. This case is before us upon the motion of appellee to reverse the judgment and remand the cause to the trial court to be by that court transferred to one of the district courts of Potter County. Appellant acquiesces in the motion. The case was before this court on May 27, 1940, in an appeal by the appellant from an adverse judgment upon a plea of privilege filed by him. We then held the plea should have been granted and reversed the judgment with instructions that the cause be transferred to one of the district courts of Potter County. Saulsbury v. Atlas Supply Co., 141 S.W.2d 992. After the case had been appealed upon the plea of privilege and before it was submitted in this court, it was tried on the merits and judgment rendered against appellant. The judgment on the plea of privilege having thereafter been reversed, it follows that 931 the court below did not have jurisdiction to try the case on its merits. O’Brien v. Smith, Tex.Civ.App., 80 S.W.2d 459, and authorities there cited. The motion to reverse the judgment will, therefore, be granted and the cause remanded in order that the court below may observe the ruling of this court upon the former appeal.