ON MOTION FOR REHEARING
MASSEY, Chief Justice.The appellee has pointed out that he raised the question of the sufficiency of the plea of privilege. No question thereof was raised in the trial court by exception or otherwise. It is true that the same was not verified, and the question was raised on appeal.
We believe that when appellee filed his controverting affidavit and thereafter entered upon the trial of the issue of venue before the trial court that the failure of appellant to have verified its plea became wholly immaterial. The fact that the plea of privilege was unsworn was a defect which could be waived, and it was waived. Indeed, the “issue” on a venue hearing is raised by the controverting affidavit, not by the plea of privilege instrument. There is no issue on the matter of venue unless and until a controverting affidavit is filed. Therefore it was the appellee who raised the issue to be tried, despite the fact that the appellant, as the defendant in the case, had filed a fatally defective plea which could not have, in and of itself, authorized a change of venue or even entitled it to any hearing on venue. See Clark, Venue in Civil Actions, Ch. 34, p. 221, “The Plea of Privilege”, § 7, “Verification”; West v. Citizens State Bank of Wheeler, 1940 (Tex.Civ.App., Amarillo), 140 S.W.2d 868, writ dism., judgment correct.
Furthermore, even were it proper to treat the plea of privilege rather than the controverting affidavit of a plaintiff as the instrument raising the venue “issue”, it would in the present instance be proper to treat it as sufficient, the issue having been tried by the implied consent of the parties. Where such is the case issues are to be treated in all respects as if they had been raised by the pleadings. Texas Rules of Civil Procedure, rule 67, “Amendments to Conform to Issues Tried Without Objection” ; McDonald, Texas Civil Practice, p. 447, “Venue”, § 4.49, “(Reply to Plea of Privilege) — (III) Contents”, amended text in pocket part following note 13.
Motion for rehearing is overruled.