The opinion
On Motion for Rehearing.
Buenz filed his plea of privilege on May 22, 1914, being the April term of the court. No action was had on the plea at that term, and it was not continued without prejudice. The plea was thereby waived. Both pleas of privilege were filed before ap-pellee intervened in the case, and although the plaintiff was dismissed from the suit, as well as the other interveners, the pleas were not renewed after appellee entered the suit, and, as stated in our former opinion, no action was taken on the- pleas of privilege as between the original parties. Some inaccuracies crept into that opinion on the subject of the plea of Cruz, but whether the pleas were waived or not, Brown’s residence in. Bexar county was sufficient ground to give the court jurisdiction of the cause, and the pleas were properly overruled.
The jurisdiction of the court having attached, Brown could not destroy it by leaving the state and instructing his attorney not to further prosecute his defense. He was a proper party to the original suit, he answered in the suit, and was in it until the final judgment. It is absurd and unreasonable to contend that a defendant can take himself out of court by informing his attorney that he did not intend to further defend in the cause. Jurisdiction cannot be defeated on any such secret agreement between attorney and client. The record fails to disclose the dismissal of Brown from the case, and it would be a very anomalous proceeding to permit a defendant to withdraw from a case against him. All defendants would withdraw, if such a rule were established. No rule is better settled in Texas than that a defendant who has answered in a case is bound to take notice of the petition of interveners. In Bryan v. Lund, 25 Tex. 98 , the defendant had not answered, *822 and the court held that he should he notified of an intervention, hut said further:
“If Bryan had answered to the suit of Lund, he would then have been considered as before the court, and as bound to take notice of the petition of interveners.”
In the case of Fleming v. Seeligson, 57 Tex. 524 , it was held:
“It is the practice to require the original parties who were properly before the court to take notice at their peril of a petition for intervention filed by leave of the court.”
To the same effect is Roller v. Reid, 87 Tex. 69 , 26 S. W. 1060 . This rule has been reiterated hy the Supreme Court in the late case of Sullivan v. Doyle, 194 S. W. 136 . The court said:
“Having entered his appearance in the main case, McKinley was before the court for all purposes, and Doyle was entitled to judgment against him upon his cross-action, without the necessity of citation.”
The contract between Brown, the contractor, and appellee was that all material was to be shipped to Laredo and delivery made there. Two plate glasses were broken in shipment, and were not delivered, and appellee on November 29, 1913, shipped two others to replace those bioken. The shipment and delivery were made at a date within 90 days of the time when the notice was given. Articles 5623 and 5636, Rev. Stats. The last two plate glasses were not delivered on the first shipment because they were broken, and the delivery was not made until the second shipment of plate glass arrived in Laredo. There is no room for a reasonable discussion of this proposition.
There is no merit in the motion for rehearing, and it is overruled.