(dissenting).
The statement of the material facts set-out in the majority opinion being substantially correct, they will not be repeated! since the writer’s dissent is based solely on the legal effect of the undisputed facts.
When Thomas D. Humphrey filed his-plea of privilege in the class suit he did not limit or qualify it. After it was filed he was entitled under our statutes to assume-the case would be transferred to- the county stated therein, unless appellee filed a controverting affidavit and served Humphrey-with a proper statutory notice of such filing.
Such controverting affidavit and notice thereon were jurisdictional prerequisites to-the trial court’s further action against Humphrey except to sustain his plea and. transfer the case to the county set out in-such plea of privilege. Scruggs v. Gribble, Tex.Civ.App., 41 S.W.2d 643, error refused;. Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222.
*313The Travis 'County District Court having lost jurisdiction of the defendant Humphrey on filing of his plea of privilege and appellee’s failure to’ properly controvert it, the judgment on the merits, as to Humphrey, was void. Being void, it was subject to collateral attack in this present proceeding.
Appellee’s contention that Humphrey, in the Travis County class suit, was dismissed as a party but not as a member of the class, is not tenable since his plea of privilege was still on file and the dismissal as to him, under our Texas decisions had the effect, in that very proceeding, of establishing venue in Dallas County as to- him. In other words, venue became res adjudicata by the dismissal.
The Travis County District 'Court had no jurisdiction over Humphrey in any capacity while the plea of privilege was on file except to transfer the case to Dallas County. The judgment, as to him, was void and could not operate either as res adjudi-cata or as an estoppel against him in the present suit here in Dallas County wherein his liability, if any, is predicated solely upon findings of fact in the former judgment in the class suit in the Travis County District Court.
The case of Richardson v. Kelly by our Supreme Court, 144 Tex. 497, 191 S.W.2d 857, cited by appellee, is not in point. There the original action after the plea of privilege was filed was nonsuited and dismissed in toto. Thereafter an entirely new and independent suit was filed. Under such circumstances either a plea of privilege or a plea of res adjudicata based on the dismissal after the plea was filed in the former proceeding, was necessary to raise the question of improper venue in the second suit. Without such a pleading in the second suit the judgment therein was neither void nor voidable; therefore not subject in the later filed suit to collateral attack.
The factual difference clearly distinguishes the Richardson case from the one now before us.
Under the writer’s view of this case, it should have been reversed and here rendered for appellant; or remanded to permit an amendment to include a trial on the issues in the Travis County Class suit; and for that reason I respectfully dissent from the disposition of the appeal by the majority.