219 S.W.2d 844 | Tex. App. | 1949
This is a suit for damages resulting from a collision between trucks belonging to the litigants. This appeal is from an interlocutory order overruling defendant’s plea of privilege.
Appellant assigns as error “the action of the court in overruling defendant’s plea of res judicata inasmuch as plaintiff had. taken a non-suit in a previous suit between the same litigants involving the same subject matter and after defendant had duly filed a plea of privilege which 'had been controverted by plaintiff.”
The plea of res judicata should have been sustained and the cause of action transferred to one of the district courts of Nueces County, Texas.
“A statutory ‘plea of privilege’ is more than a pleading and amounts to prima facie proof of defendant’s right to have venue changed from county in which suit was filed to county named in plea. Rules of Civil Procedure, rule 86.”
“Where plaintiff took a nonsuit as against one defendant on trial of pleas of privilege presented by several defendants, plaintiffs abandoned their contest of such defendant’s plea of privilege and admitted that it was well taken and that venue should be changed to county named in plea, and such nonsuit became res judicata on issue of venue precluding plaintiff from making such defendant a party defendant to the same action when venue as to other defendants was changed to a third county. Rules of Civil Procedure, rule 86.” Syllabus in Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222.
Reversed and cause transferred to Nueces County.
