
    SANER-RAGLEY LUMBER CO. et al. v. J. C. SPIVEY et al.
    (No. 778-4075.)
    (Commission of Appeals of Texas, Section A.
    May 19, 1926.)
    (g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    P. B. Rowe, of Livingston, Bean & Humphrey, of Huntsville, and Charles L. Black, of Austin, for plaintiffs in error.
    Eeagin, German & Peagin, of Livingston, and Smith & Crawford and Oswald S. Parker, all of Beaumont, for defendants in error.
   HARVEY, P. J.

This suit was brought in the district court of Polk county by the plaintiffs in error the Saner-Ragley Lumber Company and W: G. Ragley against the defendants J. O. Spi-vey and others. The purpose of the suit is to enjoin the enforcement of a judgment rendered by the district court of Polk county in favor of the said defendants in error against the plaintiffs in error for the sum of $75,000 damages, and to set aside and vacate said judgment, which is alleged to he void because of various reasons alleged in the plaintiff’s petition herein. The said last-mentioned judgment is the same one involved in the case of J. H. Spivey et al. v. Saner-Ragley Lumber Co. et al., 284 S. W. 210, pending in this court, and this day decided.

In the present case the defendants in error presented in the trial court a plea in abatement of the suit, which plea was sustained by the trial court and judgment was entered dismissing the suit. From such judgment of dismissal the plaintiffs in error appealed to the Court of Civil Appeals; that court, having, on hearing of the appeal by writ of error of said case of J. H. Spivey et al. v. Saner-Ragley Lumber Co. et al (being styled in that court Saner-Ragley Lumber Co. et al. v. J. H. Spivey et al.), reversed said judgment of the trial court therein appealed from (255 S. W. 193) and refused' to consider the appeal in the present case' and dismissed same (255 S. W. 205).

As we have this day, in the said ease of J. H. Spivey et al. v. Saner-Ragley Lumber Co., recommended an affirmance of the judgment of reversal therein rendered by the Court of Civil4 Appeals, in so far as the amount of damages therein is concerned, with instructions to .the trial court to proceed to determine the amount of such damages, the action of the Court of Civil Appeals in dismissing the appeal in the present cause becomes unimportant.

Therefore we recommend that the action of the latter court in dismissing the appeal herein be left undisturbed, and said judgment of dismissal be affirmed.

OURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.  