174 S.W. 631. The same view has been expressed in Pardue v. Confederate Air Force, 615 S.W.2d 233 (Tex.Civ.App. — Dallas 1980, writ dism'd); Spinnler v. Armstrong, 63 S.W.2d 1071 (Tex.Civ.App. — El Paso 1933, no writ); Turner v. Ephraim, 28 S.W.2d 608 (Tex.Civ.App. — El Paso 1930, no writ); Wolf v. Sahm, 55 Tex. 564, 120 S.W. 1114; on motion for rehearing, 55 Tex. Civ. App. 564, 121 S.W. 561 (Tex.Civ.App. 1909, writ ref'd) and Atchison, T. S.F. Railway Co. v. Adams, 14 S.W. 1015 (Tex.Civ.App. 1889). Appellant directs us to no case and our independent review of case law fails to disclose a single case where the granting of a new trial resulted in the waiver of the plea of privilege.

However, if we could reach it, it would have to be sustained under the doctrine announced in Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S.W. 1114, point p. 1117 (1909); same case, 55 Tex. Civ. App. 564, 121 S.W. 561, (w. ref.,). See Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071 (n. w. h.), pt. p. 1075; Turner v. Ephraim, Tex.Civ.App., 28 S.W.2d 608 (n. w. h.); Yell v. Prock, Tex.Civ.App., 238 S.W.2d 238 (w. dis.,). The judgment of the trial court is affirmed.

v. Jones, Tex.Civ.App., 195 S.W.2d 947, and other authorities there cited; Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896; that the rule is well established that a venue challenge by a proper plea of privilege has placed the burden upon plaintiff to allege and prove that the venue action comes within one of the exceptions of the venue statute; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; World Co. v. Dow, 116 Tex. 146, 287 S.W. 241; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550; Benson v. Jones, 117 Tex. 68, 296 S.W. 865; that defendant is entitled to be sued in the county of his residence, in the absence of any statutory exception; Moore v. Tucker, Tex.Civ.App., 14 S.W.2d 70; that exceptions to the privilege of a citizen to be sued in the county of his domicile must be strictly construed and clearly established; Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071; Daniel v. Jones, Tex.Civ.App., 103 S.W.2d 437; Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062; that a citizen may not lightly be deprived of the right to be sued in the county of his domicile; Amberson v. Anderson, Tex.Civ.App., 43 S.W.2d 120; Hausman Bros. Packing Co. v. Allen, Tex.Civ.App., 59 S.W.2d 246. Under all of the rules cited and for the reasons stated, we must conclude that a defendant must not be denied the privilege of being sued in the county in which he resides upon a strained or doubtful construction of the exceptional provisions.

Moore v. Tucker, Tex.Civ.App., 14 S.W.2d 70. Exceptions to the privilege of a citizen to be sued in the county of his domicile must be strictly construed and clearly established. Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071; Daniel v. Jones, Tex.Civ.App., 103 S.W.2d 437; Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062. A citizen may not lightly be deprived of the right to be sued in the county of his domicile.

In the case at bar appellants' cause of action alleged against all defendants is based upon an alleged tort (and as alleged is severable), and such allegations bring the cause alleged within the last part of the rule announced by Justice Alexander in the Johnson case, supra. But appellants contend that since they filed and presented their motion to transfer the cause against Jones Laughlin Supply Company to Limestone County before the court actually entered the orders on the pleas of privilege of defendant Best and Jones Laughlin Supply Company, that this cause comes within the rule found in 43 Tex.Jur. 876, sec. 130, and the decision of the Galveston County in Burgess v. Adams, Tex.Civ.App., 273 S.W. 343, and Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071, and Sherrod v. Ruud Mfg. Co., Tex.Civ.App., 158 S.W.2d 351. We are not in accord with this view.

Cases hold that no default judgment may be entered where the pleadings omit the allegation of defendant's residence. Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071; Walden v. Locke, Tex.Civ.App., 33 S.W.2d 475; Tyler v. Blanton, 34 Tex.Civ.App., 78 S.W. 564. But this is not an instance of default judgment. Appellant answered, appeared in person and by attorney, defended the charge of negligence and participated in the trial at every stage.

We hold that the filing of the motion to set aside the default judgment was not a waiver of the plea of privilege. Turner v. Ephraim, Tex.Civ.App., 28 S.W.2d 608; and Spinnler v. Armstrong, Tex.Civ.App., 63 S.W.2d 1071, are in point. To paraphrase the language of the last cited opinion, it was necessary for the defendant to have the default judgment set aside, and when this was done his plea of privilege should have been considered on the merits.

In the cases cited by appellant (Commercial National Bank of Beeville v. First National Bank of Cuero, Tex. Civ. App. 77 S.W. 239; Brown v. Gray Wilmerding, Tex. Civ. App. 256 S.W. 977, and Watson et al v. Jackson, Tex. Civ. App. 264 S.W. 603), the defendant himself made the misrepresentations direct to plaintiff by mail or telegraph, a fact situation manifestly aside from that presented here where the fraud was completed, as far as concerned the defendant, by his delivery of application in Harris County to the soliciting agent of appellant. "The entire venue statute has been construed by the courts favorably to the rights of defendants, Fox v. Cone, 118 Tex. 212, 13 S.W.2d 65; and strictly, and must be clearly established, Spinnler v. Armstrong, Tex. Civ. App. 63 S.W.2d 1071; and are not to be denied upon strained constructions thereof. Southwestern Surgical Supply Co. v. Scarborough, Tex. Civ. App. 15 S.W.2d 65.

West Texas Construction Co. v. Guaranty Bldg. Loan Co. Galveston Court of Civil Appeals, 93 S.W.2d 774. The entire venue statute has been construed by the courts favorably to the rights of defendants, Fox v. Cone, 118 Tex. 212, 13 S.W.2d 65; and strictly, and must be clearly established, Spinnler v. Armstrong, Tex. Civ. App. 63 S.W.2d 1071; and are not to be denied upon strained constructions thereof. Southwestern Surgical Co. v. Scarborough, Tex. Civ. App. 15 S.W.2d 65.