(dissenting on rehearing) .
The opinion of Chief Justice DIXON on rehearing has, with the concurrence of Justice YOUNG, now become the majority opinion. As I am still of the belief that the judgment of the trial court should be affirmed, I respectfully dissent.
The order here which dismissed the first appeal, as stated in our original opinion was “without prejudice” to again file its plea of privilege should appellees refile their suit and the same venue issue arise.
Without such provision in the judgment of course the rule of res adjudicata would have been applicable and properly applied to this case. Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222. However with such provision in the decree if admissible that it was without prejudice changes the situation and removes the bar of res adjudicata in this suit. See 45 Words and Phrases, Without Prejudice, p. 439 and the Pocket Part; Freidenbloom v. McAfee, Tex.Civ.App., 167 S.W. 28, syl. 1 (error ref.); 24 Tex.Digest, Judgment, <®=:’565 p. 386. In the Freidenbloom case, supra [167 S.W. 29], the court held:
*235“The first assignment of error complains of the action of the trial court in overruling the demurrer to the plea of res adjudicata. The judgment in the former suit was entered, sustaining the plea in abatement, and, by an examination of [the case], it will be noted that the former suit was dismissed at the cost of the plaintiff, ¡ without prejudice to the rights of the plaintiff to file a new suit. We are of opinion that the provision in the judg- ■ ment that the suit be dismissed without prejudice to the rights of the plaintiff to file a new suit would permit him to file such other suit, and that such judgment would not be a bar to a new action.”
While I am aware of the conflict between my views as here expressed and the holding in Slack v. Allen Military Academy, Tex.Civ.App., 289 S.W.2d 783, I believe the weight of authority supports my position in the matter.
For the reasons stated, the motion for rehearing should be overruled.