ON MOTION FOR REHEARING
In further support of our holding that issues with regard to pleadings become immaterial when a case is tried upon an agreed statement of facts, we quote from Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (Supreme Court):
“The above rules, we think, make it clear that even though the defendant wholly fails to file any answer whatever, yet if the parties appear and try the case on certain issues without any objection on the part of the plaintiff to the failure of the defendant to file an answer, the plaintiff cannot raise the issue of insufficiency of the defendant’s pleadings for the first time on appeal.”
The motion for rehearing is overruled.