Opinion
No. 16307.
March 9, 1962. Rehearing Denied April 6, 1962.
Appeal from the District Court of Wichita County, Graham B. Purcell, Jr., J.
Yarborough, Yarborough Johnson, and Donald V. Yarborough, Dallas, for appellant.
Fillmore, Schaeffer Fillmore, and Roy Schaeffer, Wichita Falls, for appellee.
The matter before us purports to be an appeal taken by writ of error complaining of certain action of the District Court of Wichita County.
Two of the three points of error presented on the appeal relate to the plea of privilege of appellant in the trial court, the third point relating to propriety of part of the judgment on the merits. As an appeal from action or non-action on the part of the trial court upon the plea of privilege, writ of error to the Court of Civil Appeals for the purpose of making any complaint thereof is not available. Western Electric Co. v. Wilson, 1927, 117 Tex. 203, 299 S.W. 868.
It is furthermore made to appear by the record before us that the appellant participated both in person and by an authorized attorney in the trial court proceedings resulting in the judgment against him. V.A.T.S. Title 42, 'Courts-Practice in District and County', Ch. 12, 'Appeal and Writ of Error', Art. 2249a 'Party participating in actual trial; writ of error review by Court of Civil Appeals', provides that when complainant and/or his attorney so participates in the trial court proceedings writ of error shall not be available to him as an appellate remedy.
Our jurisdiction is not invoked by the attempted appeal in the instant situation, whether considered as applied to action or non-action upon the appellant's plea of privilege or as applied to the propriety of the judgment on the merits of the cause in the trial court. Our jurisdiction could only have been invoked by ordinary appellate procedure, the time for which has passed.
The appeal is dismissed.