¶1On Motion of Plaintiff in Error for a Rehearing.
¶2In the motion attention is called to the fact that, according to the report of the appeal in Sullivan v. Doyle, 150 S. W. 473, the Court of Civil Appeals found that the waiver of service by McKinley, while dated September 25th, was not filed until December 9th, which was “after the cause had been called for trial.” It is argued that it therefore appeared that the waiver by McKinley was after the cross-actions ha.d been filed. If that is what the finding meant, it was in conflict with that by the Supreme Court, according to the report of its action in 108 Tex. 368, 194 S. W. 136, where that court said, “McKinley entered his appearance in the case, but of a date prior to the filing of these cross-actions,” and said further, “Doyle was denied any recovery upon his cross-action against McKinley apparently for the reason that as to it McKinley had entered no appearance and had not been-served with citation.” Evidently the ruling of the Supreme Court was on the case as it stated it, according to which it was like this one.
¶3The motion is overruled.