St. L., B. M. Ry. Co. v. Webber , 109 Tex. 383 ( 1919 )

Had there been preserved in the record the order or judgment of the trial court showing its action in overuling the defendant's plea of privilege and that exception was taken thereto, the defendant, on its appeal, would have been entitled to have considered its assignment of error challenging the court's action in that regard without further exception or addressing a motion for new trial to the ruling. With a judgment, taken from the minutes of the court, revealing the court's action, it would have sufficiently appeared of record, rendering a formal bill of exception useless and unnecessary. The hearing on the plea having been before the court and the court having acted, there was no need to again bring the matter to the court's attention by a motion for new trial. The record here, however, does not contain the order of the court on the plea, nor does it show any proper exception to the court's action in overruling it. Attempt was made to preserve a record of the court's action by means of a bill of exception filed to the succeeding term of the court at which the trial on the merits was had. The ruling would have been reviewable under a proper bill of exception filed to the term at which it was made, but it was clearly not reviewable under a bill of exception filed to a succeeding term.

The judgment of the court entered on the verdict of the jury in no-wise reflected its action at the previous term on the plea of privilege, and excepting to that judgment did not, therefore, amount to an exception to its ruling on the plea. It was for these reasons that we sustained the action of the Court of Civil Appeals in its declining to consider the assignment of error touching the plea of privilege through our refusal of the writ of error.