Majority Opinion on Rehearing
DIXON, Chief Justice.I respectfully dissent. In my opinion appellant’s motion for rehearing should be sustained, and we should reverse and remand the cause to the trial court with directions to sustain appellant’s plea of privilege.
In his first counterpoint on appeal appellee takes the position that our dismissal of the former appeal was in effect an affirmance of the trial court’s order overruling appellant’s plea of privilege rendered in the previous case. I do not agree.
We dismissed the former appeal because the venue question then before us had become moot and the issues presented by the appeal were no longer before us for adjudication, due to the fact that appellees, while the appeal was pending, had taken a nonsuit. At the time of our dismissal appellees had not refiled their suit. We stated that we had no authority to determine the venue of a non-existent suit. We further stated that our dismissal was without prejudice to the right of appellant to file another plea of privilege, and without prejudice to the right of either party to appeal from an adverse ruling should suit be filed again by appellees. Picadilly Cafeterial of Waco, Inc., v. Lee, Tex.Civ.App., 289 S.W.2d 790. Certainly there was no *233intention on our part when we dismissed the first appeal to affirm the trial court’s judgment on the venue question which was the subject of the appeal. Nor was there any intention on our part to grant, enlarge, or take away any rights which might be available to either party in the trial court as a consequence of the nonsuit taken by appellees.
In its first point on appeal appellant says that venue was fixed in McLennan County by appellees’ taking a nonsuit in the previous suit while a plea of privilege was pending. I believe appellant is correct. As a consequence of their taking a nonsuit in the first action before final adjudication was had on appellant’s plea of privilege, appellees have lost the right to relitigate the venue question in their second suit. Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222; First Nat. Bank v. Hannay, 123 Tex. 203, 67 S.W.2d 215; Slack v. Allen Military Academy, Tex.Civ.App., 289 S.W.2d 783; Clifton v. Price, Tex.Civ.App., 88 S.W.2d 783. Appellant’s first point should be sustained.
The applicable rule is stated in McDonald, “Texas Civil Practice”, sec. 4.62 as follows: “If in the former action the defendant timely filed his plea of privilege asserting the right to be sued at his domicile, and thereafter the plaintiff took a nonsuit, it is held that the venue is thereby fixed in the county of the defendant’s domicile * *
Though the doctrine has frequently been called res adjudicata, according to McDonald it is not really a matter of res adjudicata. We again quote from his Sec. 4.62: “The rules here stated are grounded not upon a true application of that doctrine, but rather upon a principle of policy: The defendant should not be subjected to the repeated expense of presenting his venue claim in successive actions by plaintiff who, through the abuse of his privilege of taking a nonsuit, prevents a final adjudication upon the question.”
The rule is applied as long as the plea of privilege is pending at any stage and no final adjudication has been reached. Clark, “Venue in Civil Actions in Texas.” Ch. 36, sec. la and sec. 3a.
Appellee argues in his second counterpoint that the above cited cases are not applicable here because they each have to do with a fact situation in which a plea of privilege had been sustained before plaintiff took a nonsuit in the first suit, which order sustaining the plea became res ad-judicata when the nonsuit was taken. But in this case, says appellee, the court had overruled appellant’s plea of privilege in the first suit when the nonsuit was taken by appellees; therefore the rule of res ad-judicata cannot be invoked in appellant’s favor in the second suit.
I cannot accept appellee’s argument for two reasons: (1) As heretofore pointed out the doctrine here invoked is not really the rule of res adjudicata; (2) the trial court’s order overruling the plea of privilege was not a final adjudication of the venue question. Appellant had taken an appeal which was still pending at the time appellees took their nonsuit; so the venue issue had not been finally adjudicated but was still pending, awaiting final adjudication on appeal. The fact situation thus presented is analogous to a situation where a plea of privilege has been filed and a controverting plea has also been filed, but there has not yet •been any adjudication of the venue question. Under such circumstances the rule has been applied. First Nat. Bank v. Hannay, 123 Tex. 203, 67 S.W.2d 215; J. H. Robinson Truck Lines v. Kerksey, Tex.Civ.App., 219 S.W.2d 844; Clifton v. Price, Tex.Civ.App., 88 S.W.2d 783.
In his third counterpoint appellee argues that the rule is not applicable in the instant case because the parties in the first suit and in this suit are not identical. The original petition in the first suit began with the words, “Mrs. L. E. Lee, joined pro forma by her husband, L. E. Lee,” and prayed for damages for personal injuries sustained by Mrs. Lee; the present suit was brought by L. E. Lee alone, though it is for damages for the same injuries.
*234However in the succeeding papers in the first suit the case was styled by appellees “Mrs. L. E. Lee et vir v. Picadilly Cafe of Waco, Inc.” Also, appellees’ controverting plea in the first case began “Now comes Mrs. L. E. Lee and her husband L. E. Lee, plaintiffs in the above entitled and numbered cause.” In the controverting plea in the first suit it is also stated that “Plaintiffs deny” the allegations in the plea of privilege; and appellees’ attorney upon oath stated that “he is the attorney of record for plaintiffs in the above entitled and numbered cause.” In fact, so far as we have been able to determine, the words “pro forma” were used in the first suit only in appellees’ original petition. Throughout the rest of the record in the original suit, Mrs. L. E. Lee and her husband L. E. Lee were both referred to as plaintiffs. This is true of the motion to dismiss the first appeal in this Court, which motion begins: “Now comes Mrs. L. E. Lee and her husband, L. E. Lee, Appellees in the above entitled matter, and respectfully move the Court to dismiss the appeal of this cause on the ground that no actual controversy exists, the said Appellees having taken a nonsuit ⅜ ⅜ * ”
Clearly the true parties in interest are the same in the first suit and in this suit. The defect in pleading in the first case, being merely a formal defect, was waived by a failure to object. Breckenridge Ice & Cold Storage Co. v. Hutchens, Tex.Civ.App., 260 S.W. 684. Under the circumstances here present the husband, though joined pro forma in the original petition in the first suit, was sufficiently before the court to make the order of nonsuit binding on him. Wade v. Wade, 140 Tex. 339, 167 S.W.2d 1008; Gist v. Tsesmelis, Tex.Civ.App., 153 S.W.2d 277; Bullock v. Englert, Tex.Civ.App., 125 S.W.2d 663.
I think the motion for rehearing should be sustained and the cause transferred to McLennan County, Texas, for trial.
YOUNG, J., concurs in the view above expressed; that is, that the motion for rehearing should be sustained and the cause transferred to McLennan County for trial on the merits.