FIRST NAT. BANK IN DALLAS et al. v. HANNAY, District Judge, et al., 67 S.W.2d 215

PEE OUEIAM. Eespondent Humble Oil & Eefining Company sued relators in a district court of Harris county. Belators filed pleas of privilege to be sued in Dallas county. Controverting affidavits were filed and a hearing had on the issues thus made, the court taking the matter under advisement. Thereafter the Humble Company filed an amended controverting affidavit, and, when the parties appeared for a hearing on that affidavit and before the court announced his decision or what his decision would be on the question of venue, the Humble Company stated in open court that it would take a nonsuit.

Whereupon, over the objections of relators, the court entered an order of dismissal. A few days after the entry of such order, the Humble Company again filed suit against relators in another district court of Harris county on the same cause of action.

Eelators present a motion for leave to file petitions praying for the issuance of a writ of mandamus directing the district judge to set aside the order of dismissal entered in the first suit and to proceed to judgment in accordance with the issues as made by the pleadings and evidence, contending that, after issue is joined by the filing of a plea of privilege and a controverting affidavit, it does not lie within the power of the plaintiff to defeat that issue by moving a nonsuit. The motion is overruled, on the authority of Atlantic Oil Producing Co. v. W. T.

Jackson, District Judge, et al., 116 Tex. 570, 296 S. W. 283, and H. H. Watson Co. v. Cobb Grain Co. (Tex. Com. App.) 292 S. W. 174. The right conferred on the plaintiff by

article 2182 of the Eevised Statutes to take a voluntary nonsuit in a case tried without a jury “at any time before the decision is announced” was not lost by the filing of the plea of privilege, the filing of the controverting affidavit, and the hearing of evidence on the issue.

The rule announced by the ease second above cited will protect defendants from the harassment and expense of several contests on the issue of venue, for judgment of dismissal upon voluntary nonsuit by the plaintiff, after the filing of a plea of privilege and a controverting affidavit and before the court has announced his decision on the question of venue, is res adjudicata as to the venue of a subsequent suit on the same cause of action.

A plaintiff, who, after filing his controverting affidavit, takes a nonsuit, thereby abandons his contest of the plea of privilege and in effect withdraws his controverting affidavit. Such action amounts to an admission that the plea of privilege is well taken.