In this case now before this court on the merits in an appeal from the County Court of DeWitt County, appellant, as defendant below, filed his plea of privilege to be sued in San Patricio County. On a hearing below on the plea and controverting affidavit the trial court overruled appellant's plea, and he appealed to this court from that order. The judgment of the trial court overruling the plea was reversed by this court and the cause ordered transferred to San Patricio County. No. 11142, Wilson v. Ryan. No motion for rehearing was filed in this court and its order became final.
In the meantime, however, the court below had proceeded to try the cause on its merits, and judgment was there rendered that plaintiff recover of defendant as prayed for. From that judgment defendant below has prosecuted his appeal to this court, and the appeal is now pending here.
Appellant has filed, and we now have before us, his motion that the judgment of the trial court on the merits be reversed and the cause remanded for further proceedings in pursuance of this court's prior order transferring the case to San Patricio County. The motion must be granted.
It having been determined by this court on the first appeal that appellant's plea of privilege was well taken and should have been sustained by the trial court, that court was without jurisdiction to hear and determine the cause on its merits. Saulsbury v. Atlas Supply Co., Tex. Civ. App. 144 S.W.2d 930; Prothro v. Smith, Tex. Civ. App.77 S.W.2d 759; O'Brien v. Smith, Tex. Civ. App. 80 S.W.2d 459; Slaughter Co. v. Slaughter, Tex. Civ. App. 288 S.W. 1107. This question is properly presented in appellant's motion to reverse and remand with instructions.
Accordingly, the judgment of the trial court in this case will be reversed and the cause remanded, with instructions to the Clerk of the County Court of DeWitt County, if he has not already done so, to make up a transcript of all the orders made in said cause prior to and including the order overruling appellant's plea of privilege, certifying thereto officially, under the seal of the court, and send it with the original papers in the cause to the Clerk of the County Court of San Patricio County, as originally ordered by this court.
Reversed and remanded, with instructions. *Page 647