The motion in this case asks a rehearing upon the ground that the plea in abatement in the lower court should have been sustained. The petition sought to recover damage of appellants for wrongfully and maliciously suing out an attachment against appellee, and also of appellants and one Costley, the officer who levied the writ, for an illegal and oppressive levy, in which appellants were alleged to have participated. The plea in abatement averred the residence of two of appellants in Galveston county, and that of the third in Hew York, and denied any participation in the excessive levy, if there was one, and claimed the privilege of the appellants of being sued for the wrongful and malicious suing out of the attachment in Galveston county. The former opinion in this case holds that, to make the plea in abatement good, it should have been averred that the allegations in the petition, of excessive levy by the officer and of appellant’s participation therein, were fraudulently made for the purpose of acquiring jurisdiction over appellants in the district court of McLennan county. The elaborate argument in support of the motion seeks to show that this proposition is erroneous, and hence that since this court holds there was no evidence to warrant a judgment against Costley, the judgment should be here reversed and rendered for appellants upon their plea of privilege.
The question presented by the motion is a difficult one- but, upon a careful examination of the record, we do not consider it necessary to. decide it.
The suit was originally instituted in March, 3884, and was *329tried in April, 1885. The plea in abatement was filed November 3, 1884, whether during term time or vacation does not appear. It was during a time when the district court of McLennan county might have been in session. If the plea had been passed over during the term without action it should be considered as waived; but there are no orders in the record as of the fall term, and we can not say this was the case. We do not know whether the court had adjourned or not when the plea was filed. But when the case was called for trial at the spring term the defendants announced ready, and the plaintiff was forced to trial upon the merits of the case. ¡Nothing appears in the record to show that the attention of the court was specially called to the plea in abatement, or that a trial was asked upon it. The statement of facts shows that the trial- was actually had upon the issues made by the petition and the answers which were interposed in bar of the action.
The record of the proceedings on the trial discloses no reference to the plea in abatement until the evidence was introduced and the jury were being charged, when defendants asked an instruction upon the subject.
The statute requires that all dilatory pleas shall be disposed of at the first term if the business of court will permit. (Rev. Stats., art. 1269), and also that when a case is called for trial all issues of law and all pleas in abatement and other dilatory pleas shall be then disposed of. (Rev. Stats., art. 1291.) But it has been held that if a plea in abatement be submitted with those to the merits it is not such error as will require a reversal of the judgment. (Holstein v. Gardner, 16 Texas, 115; Brein v. Ry. Co., 44 Texas, 302.) But the cases cited hold that when such practice is adopted the jury should be instructed to pass upon the plea in abatement first, and that if they find that issue in favor of the defendant they should go no further. These cases do not hold that the defendant is not required to call the attention of the court to his dilatory pleas and ask that they be tried before the trial upon the merits is commenced. Since these decisions were rendered the new rules have been adopted, which expressly require that “all dilatory pleas ® * * shall be first called and disposed of before the main issue on the merits is tried.” (Rules for the District Court No. 24.) This rule is in strict accordance with the spirit if not the letter of the statute, and is decisive of the question before us. In Reveler v. Reveler, 54 Texas, 53, it was *330held that the defendant by continuing his cause at the first term of the court, had waived his plea to the jurisdiction. A dilatory plea such as the plea of privilege in this case stands very nearly upon the same footing as a demurrer upon which a defendant must specially ask the action of the court or it will be considered abandoned. (Watson v. Baker, 67 Texas, 48; Galveston Co. v. Noble, 56 Texas, 575.)
We therefore conclude that the appellants, by proceeding to trial upon the merits of the case, without specially invoking the action of the court upon the plea in abatement, must be held to have waived it; and that it matters not so far as the disposition of this appeal is concerned, whether it should be considered a sufficient plea or not.
The rehearing is refused.
Refused.
Opinion delivered June 30, 1888.