The question involved on this appeal is one of venue. Associate Justice YOUNG, speaking for the majority, has made a clear, understandable statement of the case. My dissent is based on the conviction that the majority erred in applying to the instant case the doctrine of res adjudicata, as announced by the Supreme Court in First National Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215, and reannounced in Royal Pet. Co. v. McCallum, 134 Tex. 543, 135 S.W.2d 958-967.
As stated in the majority opinion, the suit was originally instituted in the District Court of Dallas County. Appellee, Blackburn, one of the defendants, filed a plea of privilege to be sued in Victoria County, where he resided; other defendants also filed pleas of privilege to be sued in Grayson County, where they resided. Appellants contested these pleas; trial was had thereon, but before the court announced a decision, appellants took a nonsuit as to appellee, Blackburn; venue as to other defendants was changed and the case transferred to the District Court of Grayson County, where the guardianship proceedings involved were pending. After the case reached the docket of the District Court of Grayson County, appellants amended their original petition, alleged the same cause of action and again impleaded appellee, who, after being cited, interposed a plea of privilege, also plead the prior proceedings had in the District Court of Dallas County as res' adjudicata of the question of venue involved. The trial court sustained this contention, changed the venue of the case as to Blackburn, to Victoria County, which on appeal was affirmed by the majority, on authority of the doctrine of res adjudicata, announced by the Supreme Court in the cases above cited.
Examination of the Hannay case reveals that, after a nonsuit was taken, the second suit based on the same cause of action against same defendant was filed in another District Court of same county, presenting identical issues as to the merits, also as to venue; with reference to which, the Supreme Court said: "* * * judgment of dismissal upon voluntary nonsuit by the plaintiff, after the filing of a plea of privilege and a controverting affidavit and before the court has announced his decision on the question of venue, is res adjudicata as to the venue of a subsequent suit on the same cause of action, * * *," and in the later case of Royal Pet. Co. v. McCallum, the Supreme Court, adopting an opinion by Judge Garman, reiterated the same doctrine. It is perfectly obvious that the subsequent proceedings had in these cases, to which the doctrine of res adjudicata was applied, and with reference to which the court used the general language employed, occurred in the District Court of the county where the original suits were instituted, hence presented identical issues, as to venue, which the court held were adjudicated against plaintiffs by the nonsuits taken in the original proceeding.
I find no fault with the rule announced in these cases, however, believe that the general language employed was with reference to the cases then under consideration, that is, in saying that taking of a nonsuit by plaintiff under the circumstances mentioned "had the effect of fixing the venue of any subsequent suit between, the parties involving the same subject-matter, in the county where the plea of privilege alleged it rightfully to be," means a subsequent suit between same parties, involving same subject-matter, instituted in same county where the original suit was instituted. To hold that such a proceeding should be given the effect of fixing venue of any subsequent suit between the parties involving same subject-matter, wherever the suit might be instituted, would in my opinion extend the doctrine of res adjudicata beyond all reasonable bounds; in effect, would be to hold adjudicated venue issues in no manner involved in the original proceedings. Discovering that a mistake has been made as to venue, a plaintiff, in my opinion, has the undoubted right to take a nonsuit and refile in a county of proper venue. That is precisely what took place in the instant case; as the majority opinion says: "Manifestly, appellants' cause of action is joint and several, and if same had been originally filed in the Grayson County forum, venue over all defendants could have been successfully maintained."
Upon what is the doctrine of res adjudicata based? Stated in 26 Tex.Jur. *Page 586 p. 11, § 353, "* * * The general principle, announced in numerous cases, is that a right, question or fact, distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery or defense, cannot be disputed in a subsequent suit between the same parties or their privies. * * *" What was the question or fact, directly put in issue and determined by the proceedings had in the District Court of Dallas County? In his plea of privilege, after necessary allegations in regard to residence, appellee was required to allege, under oath, that no exception to exclusive venue in the county of his residence existed, authorizing the suit against him in Dallas County, and in their contest, appellants were required to allege, under oath, the fact or facts relied upon to confer venue of such cause on the court where the cause was pending. See Art. 2007, R.C.S. Thus, the statute defines the issue to be determined on such a contest, that is, the existence whether or not of a fact or facts constituting an exception to exclusive venue in the county of defendant's residence, authorizing the institution of the suit against him in Dallas County. To extend the doctrine of res adjudicata, obviously as was done by the majority, so as to comprehend the determination, not only of venue issues pertaining to the original suit instituted in Dallas County, but also issues peculiar to the second suit instituted in Grayson County, in my opinion, enlarges the scope of the statutory issue and does violence to the fundamental principle upon which the doctrine of res adjudicata is based.
For the reasons stated, I think the trial court erred in sustaining appellee's plea and in changing the venue of the cause to Victoria County, hence believe the judgment below should have been reversed and the cause remanded for further proceedings.