On Motion ior Rehearing.
Appellee has filed an earnest and vigorous motion for rehearing, in which her able counsel concentrates upon the proposition, founded upon the ancient general rule,, that bills of review or revivor — suits to set aside judgments — must be instituted in the court in which the judgment brought into question was rendered.
There is no question of the existence of such rule or of its inviolability. Nor is there any question of the propriety of bringing this suit, if maintainable anywhere, in the Fifty-Third district court of Travis county, in which the judgment of dismissal complained of was rendered.
Bnt when this suit was commenced in that court the rule in question was satisfied: The suit was lodged in the court having jurisdie- ■ tion of the ^uhject-matter.
Thereupon arose the question of venue, or jurisdiction of the parties defendant, who> timely and properly invoked their privilege to be sued in Bexar county. The court resolved that issue in favor of the defendants, and ordered the venue changed to Bexar county, and was thereby deprived of the power to adjudicate the merits of the case presented in the plaintiff’s petition. That ease encompassed, first, the right of defendant to revive her long-neglected lawsuit; and, second, her right to recover upon the merits of the revived action. Both causes were inextricably joined into one inseparable action, to be adjudicated, not by piecemeal, but at one trial in one final judgment. 25 Tex. Jm’. pp.' 585,' 646, 671, §§ 185, 229, 245; Roller v. Wooldridge, 46 Tex. 485; Humphrey v. Harrell (Tex. Com, App.) 29 S.W.(2d) 963.
The result is that, when the district court of Travis county granted appellants’ pleas of privilegq and changed the venue to Bexar county, it lost all further jurisdiction in the case, which passed in its entirety to the district court of Bexar county, as held in the original disposition.
To hold otherwise would be to say that, after the question of venue has been adjudicated against him in one jurisdiction, a plaintiff may nullify that adjudication and defeat his adversary’s established privilege by :the simple trick of abandoning and dismissing his suit and thereafter reviving and prosecuting it in the prohibited jurisdiction.
The courts will not sanction such a fraud upon our venue statutes.
Appellee’s motion for rehearing will be overruled.
FLY, Chief Justice.On September 1, 1920, the plaintiff in the lower court, Mrs. D. M. Bogle, instituted this suit in the district court of Travis county, for a debt which was undoubtedly due her, against parties some of whom did not re-side in Travis county. Certain parties from Gomal county filed a plea of privilege to be. sued in that county, following all the direc-' tions of the statutes in making such plea.
That plea of privilege was filed in the district court of Travis county, and no controverting affidavit was ever filed in that court in answer to that plea. Under the statutes, after a certain period had elapsed, it became obligatory upon the court in which the case was pending to transfer it to Comal county.
Subsequent to the time of the plea of privilege, that is, in January, 1922, a rule for costs was entered by the district clerk, which was approved by the district judge. The female plaintiff paid no attention to the rule for costs and order of the district judge requiring her to give security for costs, and the matter went along in that way.
Ten years after the suit was instituted and the plea of privilege was filed, the court entered an order dismissing the suit for want of prosecution; and it has been suggested in discussions as to the manner of disposition of this case that possibly he dismissed it because the plaintiff failed to file a bond for costs.
Under the terms of the statute and under the plain terms of John E. Quarles Co. v. Lee et al., 58 S.W.(2d) 77, an opinion rendered by the Commission of Appeals and approved by the Supreme Court, after the plea of privilege was filed and no controverting affidavit was filed, there was hut one order that the district judge had any right or authority to give, and that was a transfer of the case to the proper county. The plaintiff disregarded the order of the court, and so did the court disregard the plain mandate of the statute of the *584state, and instead of transferring the case dismissed it.
This case, if it did not carry such -serious results to some of the parties, has some of the features of a comic opera, because, after disregarding the statute, after dismissing the suit, and at another term of the court, the plaintiff in the case appears and moves that the order dismissing the case be set aside, and this was done by the complacent judge. Then I-Iarry Banda and another defendant in the suit filed their pleas of privilege to be sued in Bexar county, to which Banda had removed from Comal county pending the time that expired from the filing of the first plea of privilege to the motion for new trial, at a subsequent term of the court. Other defendants, residents of Comal county, filed pleas of privilege to be sued in that county. The pleas of Banda and his associate were sustained, and the case was transferred to Bexar county. The judgment in this case from which this appeal has been taken was rendered in one of the district courts of Bexar county.
Out of all this inextricable confusion the decision has been reached by a majority of the court that this court has jurisdiction, and that the judgment should be reversed and the cause remanded to the district court of Bexar county.
While the plea of privilege first filed, and which under the law became effective, was lying in the court in Travis county, two of the parties, who possibly had been so disheartened at the law’s delays as to desire to “shuffle off this mortal coil,” passed over the river to their final account.
No scire facias was issued to make their heirs or descendants parties to the case, but they were made parties to the case upon suggestion to the court of the death of the ancestors.
Reiterating the plain, clear language by the Commission of Appeals, the writer is of the opinion that everything done by the district court of Travis county after the plea of privilege first filed became effective under the law was null and void and had no effect whatever. All of the proceedings at a subsequent term constituted a mere burlesque upon proper proceedings in court, and the transfer of the case to Bexar county was of no force or effect.
It seems that the only basis for the majority opinion in this ease is the assumption that the filing of the bill of review created a new and independent action and destroyed all • errors -and mistakes that might have been made by the court before he dismissed the suit.
The bill of review was filed for the purpose of obtaining the setting aside of a judgment of dismissal made by the district judge in the original suit, and, of course, no new cause of action was or could be plead. The plaintiff in this suit sought to recover on an account for services rendered by her to certain parties in the sale of land; she could recover only on that cause of action, no matter how many bills of review she might afterwards bring before the court.
The very word “review” carries with it the idea of looking over something that has been looked over before. It is another view of the same case, and whatever was done before that time, causing a material error, survived and would be brought over into the action that might be carried on under the pleadings for the bill of review. The same proof would be required in another trial in order to recover, as would have been required in the original suit. In fact, it is only the original suit reviewed and brought to life.
Decisions are cited to the effect that a bill of review creates a new cause of action. Of course, that is not accurately expressed, because it does not create a new cause of action.
It is true the pleadings must be different from those in the original suit, because there must be facts set up showing that the plaintiff was not negligent in the matter of protecting herself from a dismissal of the suit and that she had used due diligence in filing the bill of review. The additional burden upon her is not in regard to the merits of her original claim, but in regard to her action in connection with the dismissal of the suit by the trial judge."
This seems so plain that it would appear that it is wholly unnecessary to refer to it. If a new suit was created in this instance, it was only done because new burdens were placed upon the plaintiff in order to have her cause reinstated on the docket, because there is no burden on her to prove up the claim for which she originally sued.
I do not think that the dismissal of the suit and the filing of the bill of review, years afterward, cured all the- errors made by the ■judge in the original suit and destroyed the rights obtained by the defendants in that original suit. If the court was wrong in holding jurisdiction over the suit after the plea of privilege had been filed and had not been controverted, then the original suit is the only one to consider, and no subsequent action in regard to the suit by the plaintiff can sweep away a radical error committed by the trial judge.
If the defendants in the suit at that time had the right, as secured by statute, to have their case transferred to Comal county, nothing has transpired since that could possibly deprive them of that right. Under the plain terms of the statute in regard to pleas of privilege, when the plaintiff in the suit failed to controvert the plea of privilege of the defendant, the ease was disposed of finally, and no plaintiff would have the right to come in and file what is denominated a new suit and *585destroy all rights of the defendants to have the case filed in the county of their domicile.
I conclude that the Bexar county district court had no jurisdiction of the cause, and that there is but one disposition that should be made by this court of this cause, and that is, it should be dismissed for want of jurisdiction in the district court and in this court.
If the cause has any standing in any court, it is in the district court of Comal county. If any action can be taken by any court that has had contact with this cause to place it in Comal county, there it should he placed.
For the reasons given, I cannot concur in the decision made by a majority of this court.