POWELL, J.
For a statement of the nature of this case, we quote from the opinion of the Court of Civil Appeals as follows:
"This was an action for injunction instituted by appellee against appellants in the trial court [district court of Grayson county]. From a judgment for appellee appellants have appealed.
"The case is submitted upon the following agreed statement of facts:
"`(1) The Pittman & Harrison Company, plaintiff herein, is a corporation, incorporated under the laws of the state of Texas, and has its principal office and place of business in the city of Sherman, Grayson county, Tex., and is a mercantile corporation engaged principally in the wholesale grain business. The defendant W. B. Craig is sheriff of Grayson county, Tex., and the defendant S. J. Barnett is a duly elected, qualified, and acting justice of the peace of precinct No. 1 of Dallas county, Tex., and resides in said county.
"`(2) That on the ____ day of December, 1918, the St. Louis, Iron Mountain & Southern Railway Company, a corporation, instituted suit before S. J. Barnett, as justice of peace, against Pittman & Harrison Company to recover certain items of undercharge on shipments of grain made by Pittman & Harrison Company en route over the line of the St. Louis, Iron Mountain & Southern Railway Company, the amount sued for aggregating $169.30. Citation served in said suit was returnable to the January term, 1919, of said justice court of precinct No. 1, Dallas county, Tex.
"`(3) Prior to the return day in said suit the defendant Pittman & Harrison Company filed a plea of privilege duly verified in statutory form pleading its privilege to be sued in justice court of precinct No. 1, Grayson county, Tex., the precinct and county in which said Pittman & Harrison Company had its domicile. No controverting affidavit was ever filed in said suit by the St. Louis, Iron Mountain & Southern Railway Company, plaintiff therein. No action was ever taken on said plea of privilege by said S. J. Barnett, justice of peace of precinct No. 1 of Dallas county, Tex., and no order was entered by him in said suit either overruling or sustaining said plea of privilege at the January term, 1919, or any time thereafter.
"`(4) After the expiration of the January term, 1919, of said justice court and at a regular court day of the February term of said justice court, judgment was rendered in said suit in favor of the plaintiff, the St. Louis, Iron Mountain & Southern Railway Company, against the defendant therein, Pittman & Harrison Co., for the sum of $169.30, together with costs of suit and interest thereon at 6 per cent. per annum from date of judgment. Said judgment has never been appealed from, modified, or set aside.
"`(5) Execution was duly issued on said judgment directed to the sheriff or any constable of Dallas county, Tex., within one year after the rendition of same. Said execution was returned by constable of precinct No. 1, Dallas county, Tex., unsatisfied; no property of the defendant, Pittman & Harrison Company, being found in Dallas county subject to execution.
"`(6) After the return of said execution, and on the 18th day of February, 1920, an alias execution was issued on said judgment directed to the sheriff or any constable of Grayson county, Tex., commanding said officer to make the
amount of said judgment out of the goods and chattels of the defendant Pittman & Harrison Company. That said officer was proceeding to levy said execution upon the property of Pittman & Harrison Company when restrained by the writ of injunction issued out of the district court of Grayson county, Tex., on February 21, 1920, as set out in original petition filed herein by Pittman & Harrison Company against W. B. Craig and S. J. Barnett, defendants.
"`(7) The plaintiff in the original suit, the St. Louis, Iron Mountain & Southern Railway Company, has not been made a party to the injunction proceeding, the parties thereto being W. B. Craig in his capacity as sheriff of Grayson county, and S. J. Barnett in his capacity as justice of peace of precinct No. 1, Dallas county, Tex. Said railway company is a foreign corporation, and has no agent representing it in the state of Texas.'"
Upon a trial in the district court the collection of this judgment was permanently enjoined. This judgment of the trial court was affirmed by the Court of Civil Appeals at Dallas. See 234 S. W. 1112.
In passing upon the controlling questions upon this appeal, the Court of Civil Appeals, speaking through Judge Dexter Hamilton, says:
"By their first and second assignments of error the appellants say that the permanent injunction was erroneously granted, first, because the judgment of the justice of the peace under which execution was issued was not void, but, at most, merely voidable and subject to be set aside only upon appeal or certiorari therefrom; and, secondly, that the judgment was a binding one because the defendant in that case (appellee in the instant case) forfeited whatever rights it may have had under its plea of privilege by its failure to call the justice of the peace's attention to the plea of privilege at the term of court at which it was filed.
"That the judgment was absolutely void is not doubtful to us. The effect of filing the plea of privilege was to make prima facie proof of defendant's right to have the case transferred. The filing of the plea operated to preclude any other proceedings until after it had been disposed of in the manner provided by the statute. No contest having been filed by the adverse party, and the defendant neither having waived nor abandoned the plea, it was the duty of the court to sustain it. The only valid order which could have been entered would have been that transferring the case. All further proceedings were beyond the power of the court in the absence of a contest and notice thereof to defendant according to statutory requirement. Brooks v. Wichita Mill & Elevator Co., 211 S. W. 289; Bennett v. Rose Mfg. Co., 226 S. W. 143; Girvin v. Gulf Refining Co., 211 S. W. 331; Rice v. Broussard, 223 S. W. 323; Watson v. Watson, 223 S. W. 699; Petroleum Co. v. Britton, 230 S. W. 743.
"The view hereinabove expressed is supported by the decisions of this court, and, so far as we are able to ascertain, it conforms to the views of all other courts of Civil Appeals which have treated the question in any form, except the Beaumont court.
"It is contrary to the holding of the Beaumont Court of Civil Appeals in the case of Auds Creek Oil Co. v. Brooks Supply Co., 221 S. W. 319. The first-mentioned decisions give effect, we think, to the manifest legislative intent expressed in article 1903, Rev. Civ. Stats., as amended in 1917, while the other ignores such legislative intent and misapprehends the purpose clearly sought to be attained by the enactment.
"The judgment of the justice of the peace being void, then, under well-settled authority, its enforcement could be restrained by enjoining execution. Heath v. Layne, 62 Tex. 686."
The Supreme Court granted a writ of error because of the conflict between the decision of the Court of Civil Appeals in the case at bar and the decision of the Court of Civil Appeals at Beaumont in the case of Auds Creek Oil Co. v. Brooks Supply Co., 221 S. W. 319.
We have carefully reviewed the authorities, not only those cited by the Court of Civil Appeals, but numerous others from all sources, and especially Shepard's Citations, and we think Judge Hamilton, in the language just quoted, has correctly decided this case. Except for the opinion of the Court of Civil Appeals at Beaumont heretofore referred to, we have found no case contrary to the views of the Court of Civil Appeals herein. There may be some in very recent months, but we have not found them. We do find cases from all the Courts of Civil Appeals except that of the Third District at Austin and all of these cases are persuasively in line with the decision in the instant case. We do not find that the Austin court has passed upon the question either way.
One of the earlier cases directly in point, and cited by Judge Hamilton, is that of Brooks v. Elevator Co., 211 S. W. 288, by the Court of Civil Appeals at Amarillo. The opinion in the case just cited was written by Chief Justice Huff, and we quote from it as follows:
"The defendant in error, Wichita Mill & Elevator Company, sued plaintiff in error, John H. Brooks, in the county court of Wichita county, for goods sold and delivered to plaintiff in error amounting to the sum of $406, alleging that Brooks in writing agreed to pay the indebtedness in Wichita county. The petition was filed June 20, 1917. On August 2, 1917, the plaintiff in error filed his plea of privilege to be sued in Cherokee county, Tex., setting up his residence in that county at the institution of the suit, when the service of the citation was had on him, and at the time of the filing of the plea, and not in Wichita county at either of said dates, alleging that he did not promise nor contract in writing to pay the alleged debt in Wichita county; also negativing the exceptions authorizing the suit in the county other than the residence of the defendant, as now authorized by our statutes, the plea being sufficient in form. The defendant in error did not controvert the plea filed by plainti...
