Opinion
No. 11193.
January 29, 1964.
Appeal from the 53rd District Court, Travis County, Herman Jones, J.
Knudtson Winget, Amarillo, for appellant.
Gay Meyers, Black Stayton, Austin, for appellee.
It appears that on September 11, 1961 in the Court of Domestic Relations in Potter County, Texas in Cause No. 8183 styled Vicki Gayle Knapp v. Walter Lee Knapp, Jr., a divorce was granted and the custody and control of Sheri Lynn Knapp and Dustin Lee Knapp, children of the parties, was awarded to their mother, Vicki Gayle Knapp with two weeks custody allowed the father, Walter Lee Knapp, Jr., during the summer.
In Cause No. 133,339 in the 53rd Judicial District Court of Travis County, Texas, Vicki Gayle Knapp filed a petition in behalf of the children and herself for habeas corpus and attachment, alleging the divorce and the award therein, and that on August 17, 1963 by fraud and trespass committed in Travis County, Walter Lee Knapp, Jr., attained custody of the children, and that when the two weeks period expired on August 31, 1963 the said Walter Lee Knapp, Jr., refused to return the children to petitioner and sought and obtained on the 5th of September, 1963 a writ of attachment to obtain custody of the two children, also a writ of habeas corpus.
The petition having been presented to the Court was granted and the Clerk issued the writs, and a hearing was set for September 10, 1963 in the Courtroom in Austin, Texas.
The children were turned over to the Sheriff by Mr. Knapp.
On September 9, 1963 Walter Lee Knapp, Jr. and Deann Knapp filed a plea of privilege to be sued in Potter County, Texas, duly verified, and at the same time and subject to their plea of privilege the defendants filed their cross-action seeking a modification of the original judgment in Potter County as to the custody and control of the children, reciting changed conditions.
On September 10, 1963 the petitioner filed her motion for a non-suit and such motion was granted, and the petition for habeas corpus and attachment were in all things dismissed, without prejudice to petitioner and without prejudice to the counter claim of respondents.
The petitioner filed an answer and counter claim and the counter claim of respondents and that of petitioner are pending undisposed of in the District Court of Travis County and subject to trial and disposition.
On October 2, 1963 the plea of privilege of the defendants was overruled.
The appeal is from the action of the Trial Court in overruling the plea of privilege of the appellant.
Appellee has filed her motion to dismiss the appeal and we believe such motion should be granted and the appeal is dismissed. The action to which the plea is directed is no longer in existence.
No objection was made to the order granting the non-suit, and the issues raised by the plea of privilege were rendered moot by the non-suit. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331; Gladden v. Thurmond et al., Tex.Civ.App., 77 S.W.2d 703; Johnson v. Galloway, Tex.Civ.App., 277 S.W.2d 127; Rule 164, Texas Rules of Civil Procedure; Quarles v. Glover, Tex.Civ.App., 335 S.W.2d 446.
The appeal is dismissed.
Appeal dismissed.