
    CAUSEWAY INV. CO. v. NASS.
    Motion No. 13296; No. 2119—6990.
    Commission of Appeals of Texas, Section A.
    Feb. 2, 1938.
    For former opinion, see Tex.Com.App., Ill S.W.2d 703.
    Stewarts and Byron Economidy, all of Galveston, and W. Noble Carl, of Houston, for plaintiff in error.
    McDonald & Wayman and H. E. Klein-eclce, Jr., all of Galveston, for defendant in error.
   GERMAN, Commissioner.

The jurisdiction of the Supreme Court in this case has been challenged for the first time in motion for rehearing. After a careful consideration of the petition filed October 23, 1933, on which the case went to trial, and the answer thereto, we have concluded that in addition to the plea to recover the money paid, it also attempted to set up a plea for specific performance. Although this plea was abandoned, nevertheless the case made by the pleadings may be looked to in determining the jurisdiction of the court.

■ By the judgment in the district court defendant was permitted to withdraw the $693.25 deposited in the court on December 18, 1925. Apparently, this part of the judgment was not appealed from, and in reversing and rendering judgment in favor of plaintiff in error we did not refer to the same. In order to remove all doubt in the matter, the judgment of the court will be so amended as to affirm the action of the trial court in allowing withdrawal of this sum.

The motion for rehearing by defendant in error is in all other respects overruled.

Opinion adopted by the Supreme Court.  