On Motion for Behearing.
By a well-prepared and comprehensive motion, appellee insists that appellant as*956signs no error, and certainly makes no attempt to specify any error committed by the court upon which this appeal is or could be based. What position does appellant’s motion for a new trial occupy with reference to the interlocutory judgment by default and the plea of privilege filed by appellant? Was it filed to have the interlocutory judgment set aside in order to obtain a hearing on the plea of privilege that a full and complete trial should be had upon the merits of the controversy in the county of appellant’s residence, or to secure a trial on the merits before the court in which the suit was filed? To sustain appellee’s position, it would be necessary to hold that the real purpose of the motion, if not in fact the only purpose, was to have the judgment by default, with writ of inquiry awarded, set aside for the purpose of securing the right to litigate the merits of the case before the court in which the suit was filed, and not for the purpose of securing a full hearing on appellant’s plea of privilege in accordance with the established forms of law applicable to such issues raised under the venue statute that the cause should be tried on its merits in the county of appellant’s residence. It must be borne in mind that such hearing cannot be had on the plea of privilege so long as the interlocutory judgment remains in force, and that no answer to the merits was filed with said plea.
As we interpret the motion, the primary object sought by appellant ito be accomplished thereby was to have its plea of privilege heard and determined, to the end that its right to be sued in the county of its legal residence should be properly adjudicated. Therefore, it is apparent that said interlocutory judgment was sought to be set aside as a necessary prerequisite to the accomplishment of that purpose. That the trial court so understood the object of appellant’s motion is conclusively shown by the judgment thereon, viz.:
“ * * * And the court, after hearing said motion and the evidence adduced thereon, finds that the said plea of privilege was filed after 10 a. m. of February 11, 1924, and after judgment by default was rendered in said cause, and the court is of the opinion that it was filed too late, and for said reason the said motion should be overruled, and the said plea of privilege denied and overruled.
“It is therefore considered, ordered, adjudged, and decreed by the court that the defendant’s said second amended motion for new trial be and the same is hereby overruled, and further that defendant’s said plea of'privilege filed on February 11, 1924, be and the same is hereby overruled and denied. * * * ”
That the judgment by default is interlocutory there can be no question, and it may as well be said that the judgment disposing of the plea of privilege is final, in the sense that same may be appealed from, both as to the refusal to hear said plea and in overruling and denying same. The appeal is from the judgment of the court refusing not only to. grant appellant a hearing on its plea of privilege, but also from that part of the judgment denying appellant the relief sought by said plea. Therefore the grounds of the motion are certainly sufficient as assignments of error on ‘ which to base propositions necessary to support the appeal from the judgment denying appellant a hearing on its plea of privilege, and in overruling same without evidence supporting the issue raised, by appellee’s controverting affidavit.
Even if it should be conceded that the motion for a new trial filed by appellant sought only to have the interlocutory judgment by default vacated, and that a motion for a new trial in re the proceedings had on said" plea should have been filed after the judgment was rendered denying and overruling same, or that formal assignments of error should have been filed as a basis for the appeal from the judgment disposing of said plea of privilege, yet, as the court assumed to pass upon the issue presented by said plea and the controverting affidavit, it was just as incumbent upon the court to be governed by the provisions of the law, governing such hearing, as it would have been if the plea, had been filed before the judgment by default had been rendered. This the court failed to observe, in that, without any evidence in support of the controverting affidavit and without a hearing on the issue raised by same, hearing of the plea was refused, and the change of venue sought thereby denied. This is fundamental error revealed by the record, and therefore sufficient to require this court to review the judgment rendered thereon without an assignment of error in any other form presenting such procedure. Therefore we hold that the judgment, in so far as same disposes of the plea of privilege, is properly presented to this court by the appeal prosecuted therefrom.
This conclusion necessarily results in the overruling of appellee’s motion for a rehearing, and it is so ordered.
Overruled.