The appellant brought this suit against the appellee in the district court of Dallas county to recover the amount due upon a paving lien certificate and to foreclose the statutory lien upon certain lots in Floydada, Tex. The defendant filed a plea of privilege to be sued in Floyd county where he resided. The plea was contested and overruled. From such order an appeal was prosecuted and the judgment overruling the plea of privilege was reversed and the cause remanded with instructions to transfer the venue to the district court of Floyd county. Snodgrass v. Murray, Receiver (Tex.Civ.App.) 67 S.W.2d 388. Pending the appeal from the order overruling the plea of privilege, the case was called for trial upon its merits whereupon the defendant applied for a continuance until the appeal mentioned had been disposed of. The motion was overruled and the cause proceeded to trial upon its merits, whereupon judgment was rendered that plaintiff take nothing. From this judgment the receiver appealed to the Dallas Court of Civil Appeals. The appeal was transferred from that court to this court by an equalization order of the Supreme Court.
The plea of privilege presented a jurisdictional question. Craig v. Pittman Harrison Co. (Tex.Com.App.) 250 S.W. 667; John E. Quarles Co. v. Lee (Tex.Com.App.) 58 S.W.2d 77. The ruling upon the appeal from the order overruling the plea of privilege establishes that the district court of Dallas county improperly assumed jurisdiction to try the case upon its merits. Lacking jurisdiction, its judgment should be set aside and the cause remanded. 3 Tex.Jur., p. 130, § 65; Williams v. Steele,101 Tex. 382, 108 S.W. 155; Wadsworth v. Chick, Administrator, 55 Tex. 241.
Accordingly, the judgment is reversed and the cause remanded to the district court of Dallas county to the end that the cause may be transferred for trial upon its merits to the district court of Floyd county, in accordance with the instructions of the Dallas Court of Civil Appeals in the opinion rendered upon the appeal from the order overruling the plea of privilege.
The appellant having improperly brought the suit in the district court of Dallas county, and having insisted upon the trial upon the merits before the disposition of the appeal first mentioned, it is proper that the costs of this appeal be taxed against the appellant and it is so ordered. Wadsworth v. Chick, Administrator, supra.
Reversed and remanded.
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