Opinion
No. 6356.
July 30, 1981.
Appeal from the 220th District Court, Bosque County, Floyd R. Wilson, J.
Warwick H. Jenkins, Jenkins Jenkins, P. C., Waxahachie, for appellant.
Steve Robertson, McMullen, Connally, Robertson Campbell, Inc., Clifton, Bert F. Pace, Shaffer, Shaffer, Pace Redwine, Denison, for appellee.
OPINION
Plaintiff Helen Janis Youngblood sued defendant Eldon Lee Youngblood in Bosque County to enforce an "Agreement Incident to Divorce" which provided that defendant would pay plaintiff contractual alimony. Defendant filed his plea of privilege to be sued in Dallas County; plaintiff controverted; and after hearing the trial court overruled such plea of privilege. Defendant appealed to this court from the order overruling his plea of privilege.
While the appeal is pending in this court plaintiff filed motion in the trial court for a nonsuit which the trial court granted and dismissed the cause without prejudice to plaintiff.
Plaintiff has filed her motion to dismiss defendant's appeal.
During the pendency of appeal from order overruling plea of privilege, the trial court possesses the authority to permit nonsuit at instance of plaintiff, since the power of the trial court to try the case on the merits was not suspended during pendency of appeal from such order. And the question of whether the trial court erred in overruling the plea of privilege is now moot in this court. Slaughter v. Carter, Tex.Civ.App. (Waco) NWH, 410 S.W.2d 496; McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331; Bray v. Compton, Tex.Civ.App. (Waco) NWH, 376 S.W.2d 436; ABC Rendering, Inc. v. Martin, Tex.Civ.App. (Waco) NWH, 407 S.W.2d 551.
Motion granted. Appeal dismissed at cost of appellee.
APPEAL DISMISSED.