Blakeney v. State

Full title: BLAKENEY et al. v. STATE et al

Court: Court of Civil Appeals of Texas, Austin

Date published: Apr 4, 1923

251 S.W. 824 (Tex. Civ. App. 1923)

Opinion

No. 6682.

April 4, 1923.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by the State of Texas and others against J. C. Blakeney and others. From an interlocutory order overruling a Plea of privilege, defendants appeal. Appeal dismissed.

W. A. Keeling, Atty. Gen., and Walace Hawkins, Asst. Atty. Gen., for the State.

BLAIR, J.

This is a substitute opinion, filed in lieu of an opinion filed heretofore in this cause, on the 4th day of April, 1923; said opinion having been withdrawn by the court on its own motion.

This is an appeal from an interlocutory order overruling a plea of privilege. The state of Texas, acting by and through its Attorney General, has presented its motion to dismiss this appeal herein. Attached to said motion for dismissal is a certified copy of a final decree in this case rendered in the court below upon its merits, whereby it is shown that the case proceeded to trial immediately upon the plea of privilege being overruled, appellants and all other parties announcing ready; and said final decree further shows that appellants herein were discharged from liability in said cause, and were permitted to go hence without day with their costs.

Appellees' second proposition for a dismissal is based upon the fact that the final judgment having been rendered in favor of appellants herein, and they having been finally discharged from liability and permitted to go hence without day with their costs, that nothing is involved in this appeal, and the question presented is moot. We are of the opinion that appellees' contention is correct, and that the question presented is moot, and the motion is therefore granted, and the appeal dismissed.

In view of our opinion herein, we do not deem it necessary to pass upon the other proposition presented for a dismissal of this case. However, it is contended by this proposition that article 1833 of the Revised Statutes is unconstitutional, in that no mode, manner, nor time is provided whereby an appeal from an interlocutory order sustaining or overruling a plea of privilege may be perfected. This question we do not deem necessary to pass upon at this time, since appellees have attained the end sought, and the cause has been dismissed.

Motion granted.

Appeal dismissed.