Judgment — Agreement to Vacate — Plea of Privilege.
Defendant who, after a judgment had been entered against him, overruling also his plea of privilege, had entered into a written agreement that the court should vacate same and thereafter hear and determine the question presented by such plea and the controverting affidavits thereto filed by plaintiff, could not be heard to challenge the issue presented by such affidavits on the ground that they had not been filed in time. Having so agreed, error by the appellate court in construing the statute (Art. 2007) as to the time within which such affidavits must be filed was immaterial on his application for writ of error. (P. 409).
PER CURIAM Opinion on Motion for Rehearing:
The writ of error in this case was properly refused, regardless of the erroneous construction placed by the Court of Civil Appeals on Art. 2007 of the Revised Statutes. Plaintiff in error could not be heard to challenge the right of the court to determine the issue made by a plea of privilege and a controverting affidavit, after entering into an agreement in writing that the court should vacate a certain judgment against him, and thereafter hear and determine the question presented by the plea and the controverting affidavit thereto. Motion for rehearing is therefore overruled.