On Rehearing.
Our original opinion was based upon the conclusion that the trial court entered a void order in reinstating the case on the docket at a term subsequent to the one at which same had been dismissed for want of prosecution. That is clearly a sound conclusion, provided the court had the authority to enter the first order of dismissal. We stated in our original opinion that the first order of dismissal was not appealed from, and that we must therefore assume its regularity.
A careful reconsideration in the light of an opinion of the Commission of Appeals, published since our original opinion was released, has convinced us that the appeal did -bring into question the validity of the first order of dismissal the same as the order of reinstatement and the second order of dismissal. The opinion referred to is in the case of John E. Quarles Co. v. Lee, 58 S.W. (2d) 77. Reviewing the record before us as a whole, it affirmatively discloses that more than a year elapsed after the filing of the controverting plea to the plea of privilege before the order was entered dismissing the case for want of prosecution. Since the appellant, who was plaintiff below, delayed for that long period to have the issue made by his controverting plea set down for hearing and disposed of by the court, the situation was the same as if he had filed no controverting plea at all. Bundrant v. Woodley (Tex. Civ. App.) 32 S.W.(2d) 664; Brashears v. Strawn National Bank (Tex. Civ. App.) 57 S.W. (2d) 177; Burch Inv. Co. v. Hassen (Tex. Civ. App.) 58 S.W.(2d) 848.
The Court of Civil Appeals in Lee v. John E. Quarles Co., 39 S.W.(2d) 947, in considering a record very similar to the one here presented, held that, when a plea of privilege is filed and the plaintiff fails to controvert same, the trial court is left with jurisdic-' tion either to order the venue changed or to dismiss the cause for want of prosecution. A writ of error was granted, and in the case of John E. Quarles Co. v. Lee, supra, in an opinion by the Commission of Appeals, approved by the Supreme Court, it was announced that the trial court had no jurisdiction to enter any final judgment or any other judgment in the cause except to transfer the venue thereof. The order of reinstatement at a subsequent- term was therefore held to be valid. For the same reason the order of reinstatement in the instant case should be held valid, since the court was not authorized to enter the original order of dismissal. Of course, if appellee had waived his plea of privilege prior to the entry of the first order of dismissal,,our original judgment was correct. But a waiver is not even suggested by the record. It follows that the only valid order which the court below could have entered, after the appellant permitted several terms of court to pass without presenting to the court his controverting plea to appellee’s plea of privilege, was one transferring the venue to Tarrant County.
It is therefore our order that the motion for rehearing be granted, the judgment here*615tofore rendered be set aside, and, in lieu thereof, that judgment he here rendered reversing the judgment of the trial court and remanding the cause to that court, with instructions that it order the venue changed to Tarrant county. .
Reversed and remanded, with instructions.