Sack v. Toplitz

WALKER, Chief Justice. On the 20th day of February, 1942, appellants, Alfred N. Sack and Lester J. Sack, filed this suit in district court of Jefferson County against appellees, Lambert Toplitz and Harry Jacobson, the First National Bank of Beaumont, and South Texas Theatres, Inc., praying for partition of certain real property in Jefferson County, and for appointment of a receiver to collect the rents on the property pending the litigation. The Bank answered by special exception and general denial and by cross action for judgment upon a note in its favor executed by the owners of the property involved in the partition suit, and for foreclosure of its deed of trust against the property, given to secure its note. Top-litz and Jacobson answered by exceptions and general denial, and by way of cross action against appellants. On the 2nd day of April, 1942, after appellees had filed their cross action, appellants appeared in the suit, asking for a continuance of their hearing upon their application for a receiver, which was granted. On the 13th of April, 1942, appellants filed their pleas of privilege to be sued in Dallas County on the cross action filed against them by Top-lit z and Jacobson. This appeal is from the judgment of the lower court overruling the pleas of privilege. We pretermit a discussion of the technical points presented by appellants in support of their pleas of privilege. It is sufficient to say that by appearing in the lower court after the cross action was filed they waived their pleas of privilege as against the cross action. ■ The judgment of the lower court is affirmed.