In this county court case appellants each seasonably filed his plea of privilege to be sued in the county of his domicile. Each plea contained every requisite prescribed by the statute to render it “sufficient” in law as a plea of privilege. Article 2007, R. S. 1925.
To these pleas appellee interposed general and special demurrers, as well as a controverting affidavit. The trial court .considered only the general demurrer, which it sustained, and thereupon, without further ado, denied appellants’ asserted privilege.
The proceeding was clearly erroneous.
It is provided by statute that a plea of privilege “shall be sufficient if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that ‘no exception to exclusive venue in the county of one’s residence provided by law exists in said cause’; and such plea of privilege when filed shall be prima facie proof of the defendant’s right to change of venue.” Article 2007, R. S. 1925.
The plea filed by appellants in this case strictly and fully complied with those requirements of the statute.
It is further provided, in article 2007, that: “If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pénd-ing;” that (article 2008), “upon the filing of *899such controverting plea, the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege,” and that after ten days’ notice to defendant “the court shall promptly hear such plea of privilege and enter judgment thereon.”
Appellee filed both a general and special demurrer to appellants’ plea of privilege, as well as a controverting affidavit thereto. The court passed only upon the general demurrer, which was sustained, and it was thereupon decreed, “without hearing any evidence,” that the plea was “insufficient,” and therefore was “in all things denied and refused.”
Appellants raise the question of failure of proper notice to them of the hearing of their plea. It is probable that appellants waived such notice, but that question is deemed immaterial in this inquiry.
The plea of privilege, being in the form and of the substance prescribed by statute, established a prima facie case for change of venue, and, until a proper controverting affidavit was timely filed, the trial judge had no power to enter any order except one sustaining the plea.
This interposition of the controverting affidavit had no greater effect than to put in issue the facts asserted in the plea of privilege, which must still prevail until overcome by evidence adduced upon a hearing of those issues, the burden of pleading and proof resting upon the plaintiff throughout the proceeding. The facts alleged in appellee’s petition, nor those in his controverting affidavit, could be taken as true as against the plea of privilege. Those facts must be affirmatively established by evidence before the court may consider them in determining the plea of privilege. World Co. v. Dow, 116 Tex. 146, 287 S. W. 241; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, 865; First Nat. Bank v. Cage (Tex. Civ. App.) 32 S.W.(2d) 500.
The plea of privilege, being in strict conformity to the requirements of the statute, was impervious to demurrers. It is only when it lacks one or more of the essential elements prescribed by the statute, or sgts up extraneous facts which affirmatively sustain the venue of the forum, that a plea of privilege may be reached by demurrer.
The judgment is reversed, and the cause remanded for further proceedings in consonance with this opinion.