Here, we view another instance of the reversal of a case upon a mere technical error, which had no relation whatever to the judgment entered or the justice of the case. This is the third time within as many weeks that reversals have occurred in this court on mere technicalities. See Traders General Ins. Co. v. Rudd (Tex. Civ. App.) 102 S.W.2d 457, and United States Fidelity Guaranty Co. v. Flanagan (Tex. Civ. App.)103 S.W.2d 446. In the above cases I concurred in the judgments of this court for the reason that the court was without power to do otherwise than reverse the cases. But I filed in those cases concurring opinions calling attention to the injustice resulting from the following of mere technical rules.
In the case before us, the majority are reversing and remanding the case on the sole ground that the plaintiff on the hearing of the plea of privilege failed to make prima facie proof of the due execution of the note sued upon. The holding is based upon the sole ground that the filing of the plea of privilege amounted to a plea of non est factum as to the note sued upon, and hence, that introduction of the note without proof of its due execution did not establish even prima facie the making of the note. *Page 62
I am not disposed to quibble over the proposition of whether or not the cited cases sustain the conclusion. As reflected in the majority opinion, this case was tried on its merits subsequent to the overruling of the plea of privilege, and the record upon that trial is before us. The appellant filed no plea of non est factum to the merits, nor is there a hint or suggestion that the note was not executed in accordance with its face, tenor, and effect, or that it is not just, due, and unpaid. The judgment entered on the merits was obviously correct, and the same judgment will no doubt have to be entered on the subsequent trial. Yet, because of a mere technical procedural rule, this court is to reverse the case and send it back. I do not concur in that judgment for the reason that, as I view it, this court has some discretionary power in the matter. This, because the question involved is a plea of privilege, and is a matter of which Courts of Civil Appeals have final jurisdiction. Believing that we have the power and that a court ought to do right whenever the rules permit, I respectfully dissent.