Gammel's Rules of the Courts of Texas Page: 42 of 70
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TEXAS COURT RULES.
first called and disposed of before the main issue on the merits is
See Articles 1910 and 1947, and annotations under Answers, District
and County Court Rules 6-11.
Held, in view of above articels, that, where defendant presented his
plea of privilege and demanded a ruling thereon before a trial on the
merits, he did all he was required to do, and the court having determined
to hear the plea with the main case, that defendant, on applying for a
necessary continuance, failed to again insist on a hearing of his plea,
did not constitute a waiver thereof. Waldrop vs. Roquemore (C. A.),
127 S. W. R., 248. Burden on Plaintiff, When. Reese vs. Langley, 230
S. W. R., 509.
Held, where the defendant agreed to a continuance, without calling the
trial court's attention to his plea of privilege during the term at which
it was filed, waived said plea. Lupton vs. Williams (C. A.), 154 S. W. R.,
261. See, Harris Millinery Co. vs. Melcher (C. A.), 142 S. W. R., 100.
Held, the trial court may in its discretion dispose of dilatory motions
at the trial of the merits, and where evidence on the motions and the
main case are heard together, it must require the jury to first dispose of
the motions, and, where that is done, the defeated party may not complain
unless he shows that he suffered injury by the failure of the court to
dispose of the motions before hearing evidence on the merits. Pecos and hence it was improper to reserve ruling on a demurrer to
the answer until the close of the evidence. Western Union Telegraph
Co. vs. Ashley (C. A.), 137 S. W. R., 1165.
MOTIONS AND EXCEPTIONS TO MERITS.
25. All motions which go to the merits of the case, and all exceptions,
general and special, which relate to the substance or to the
form of the pleadings, shall be decided at the first term of the court,
when the case is called in the regular order for trial on the docket,
if reached, whether there be an announcement on the facts or not,
unless passed by agreement of parties with the consent of the court.
See, Rule 24 above, and Article 1945.
Exceptions to pleadings should be made before trial on issue of fact;
such defects cannot be taken advantage of by objections to testimony
on the trial. Railway Co. vs. Preston, 74 T., 181 (11 S. W. R., 1108);
Western Union Tel. Co. vs. Ashley, 137 S. W. R., 1165. Held, misjoinder
of causes of action should be pleaded in limine, and is waived by
demurring and answering to the merits. Kemendo vs. Fruit Dispatch
Co. (C. A.), 131 S. W. R., 73; Dishman vs. Frost, 140 'S. W. R., 358;
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Moffett, James William. Gammel's Rules of the Courts of Texas, book, 1922; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth5836/m1/42/: accessed February 20, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .