Miller v. Stout

I agree that the trial court’s order dismissing the case cannot stand. However, I agree with plaintiffs’ contention that they are entitled to a jury resolution of questions of fact which must be determined in order to dispose of the plea in abatement and Rule 12 motion. Hernandez v. Light Publishing Co., 245 S.W.2d 553, 554 (Tex.Civ.App.—San Antonio 1952, writ ref’d) clearly recognizes that plaintiff, but for his waiver, would have been entitled to a jury trial irrespective of whether the plea in question was a plea in bar. Buchanan v. St. Louis Southwestern Railway Co., 400 S.W.2d 362, 366…