While the petition was styled, under the statutory term, as a bill of review, it amounted to no more than a motion for new trial, permitted in such cases by virtue of the statute, to be filed and heard after adjournment of the term. Mussina v. Moore, 13 Tex. 7; Miles v. Dana, 13 Texas Civ. App. 240[ 13 Tex. Civ. App. 240], 36 S.W. 848; Glaze v. Johnson, 27 Texas Civ. App. 116[ 27 Tex. Civ. App. 116], 65 S.W. 662; Wolf v. Sahm, 55 Texas Civ. App. 564[ 55 Tex. Civ. App. 564], 120 S.W. 1114; Fred v. Fred, 126 S.W. 900."

A proceeding to set aside a judgment obtained on service by publication, instituted by defendant under article 1375, Rev. Stats., at a subsequent term but within two years from its rendition, is but a continuation of the original suit, as by a motion for new trial in ordinary cases, and the defendant so proceeding may, upon such new trial, defeat plaintiff's right to recover by showing a mere legal defense, as that plaintiff's action was barred by limitation. Wolf v. Sahm, 55 Texas Civ. App. 564[ 55 Tex. Civ. App. 564], followed, and Polk v. Herndon, 44 Texas Civ. App. 441[ 44 Tex. Civ. App. 441], 93 S.W. 531, overruled. 2. — Same — Case Stated — Divorce.

— An order sustaining a plea of privilege and changing the venue is appealable. Wolf v. Sahm, 120 S.W. 1114; Wolf v. Sahm, 135 S.W. 733; Oakes v. Thompson, 125 S.W. 320; Luter v. Ihnken, 143 S.W. 675; Water Co. v. El Campo, 150 S.W. 257; Moorhouse v. Cattle Co., 139 S.W. 883. Defendants by their cross-action waived their plea of privilege.

While the petition was styled, under the statutory term, as a bill of review, it amounted to no more than a motion for new trial, permitted in such cases by virtue of the statute, to be filed and heard after adjournment of the term. Mussina v. Moore, 13 Tex. 7; Miles v. Dana, 13 Tex. Civ. App. 240, 36 S.W. 848; Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S.W. 662; Wolf v. Sahm, 55 Tex. Civ. App. 564 [ 55 Tex. Civ. App. 564], 120 S.W. (1114), 1115, 121 S.W. 561; Fred v. Fred, ( 58 Tex. Civ. App. 574), 126 S.W. 900.' So here, the appeal bond having been filed with the Clerk within 30 days after the action of the court overruling appellants' motions, the bond was filed in time for appeal.

t part of article 1194 declares that no person shall be sued out of the county of his domicile, and the fourteenth subdivision thereof declares that suits for the recovery of lands, etc., must be brought in the county in which the land or part thereof lies, yet a defendant not residing in the county where the suit is instituted to recover land lying in still a third county, may waive his right to be sued in some other county, and thereby submit himself to the jurisdiction of the court in which the suit has been instituted. Nevertheless, as the two provisions of the statute referred to indicate an intense legislative purpose to secure to a defendant the right to have such litigation conducted in one of two counties, and as the law as enacted by the recent amendment referred to provides for a change of venue when a defendant has not been sued in the proper county, it would seem that the courts ought to lend a willing hand to aid him in securing the right so clearly conferred upon him. (Wolf v. Sahm, 55 Texas Civ. App. 564[ 55 Tex. Civ. App. 564].) Hence we conclude that the court erred in setting aside the order sustaining the plea of privilege to be sued in Baylor County, and also erred in sustaining the plaintiff's exception to that plea; and having reached that conclusion, we do not deem it necessary to consider the other questions presented in appellant's brief.

Givens v. Hudson, 64 S.W. 471; Quintana v. Giraud, 209 S.W. 770; Roco v. Green, 50 Tex. 483; Huffman v. Newhaus, 30 Tex. 633; Lacy v. Lockett, 82 Tex. 190; Burns v. Jones, 37 Tex. 50; Wilkins v. Briggs, 107 S.W. 138; Childers v. Henderson Co., 76 Tex. 664; Stephenson v. Marsalis, 33 S.W. 383; American Bonding Co. v. Logan, 106 Tex. 306. On the question of limitation. Warren v. Faust, 81 S.W. 232; Hamilton v. Blackburn, 95 S.W. 1094; McLain v. Stith, 112 S.W. 355; Wolfe v. Sahn, 120 S.W. 1114 and 121 S.W. 561; Rutherford v. Carr, 84 S.W. 660. On the question of innocent purchaser.

be denied. Osborn v. Younger, 235 S.W. 558; Galbraith v. Bishop, 287 S.W. 1087; Jackson v. Wallace, 239 S.W. 698; Smith v. McDaniel, 170 S.W. 1070; Crowdus v. Turner, 270 S.W. 1041; Jirou v. Jirou, 136 S.W. 493; Hickman v. Swain, 210 S.W. 548; Kruegel v. Porter, 136 S.W. 801; Vardeman v. Edwards, 21 Tex. 737; Merrill v. Roberts, 78 Tex. 28; Robbie v. Upson, 153 S.W. 406; Rogers v. Dickson, 176 S.W. 865; Browning v. Pumprey, 81 Tex. 163; White v. Homes, 129 S.W. 872; Glidden Stores v. Boyd, 287 S.W. 1093; Nevitt v. Wilson, 285 S.W. 1079; Pierce v. Watkins, 114 Tex. 153; Green v. Green, 288 S.W. 406; State v. Bigham, 280 S.W. 1062; Glenn v. Milam, 263 S.W. 900; Jefferson v. Scott, 135 S.W. 705; McDaniel v. Hightower, 111 Tex. 585; Farmers Gas Co. v. Calame, 262 S.W. 546; Peckham v. Clark, 294 S.W. 278; McCord-Collins Co. v. Stern, 61 S.W. 341; Wright v. Swayne, 104 Tex. 440; Cleveland v. Ward, 285 S.W. 1063; Orange Grocery Co. v. Leverett, 282 S.W. 625; Tinsley v. Corbett, 66 S.W. 910; Wolf v. Sahm, 120 S.W. 1114; Laurine v. Ashe, 109 Tex. 69, 191 S.W. 563; Texas Farm Bureau v. Lennox, 296 S.W. 325; Pollard v. Speer, 207 S.W. 620; Robertson v. Work, 207 S.W. 1117; Smith v. Conner, 98 Tex. 434, 84 S.W. 815; Townes v. Lattimore, 114 Tex. 511, 272 S.W. 435; Dickinson v. Dickinson, 138 S.W. 205. MR. PRESIDING JUDGE HARVEY delivered the opinion of the Commission of Appeals, Section A.

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.

Such a motion is for the sole purpose of seeking to set aside the existing order, and is not a pleading upon which to try the case. Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S.W. 1114 (1909, writ ref'd). Such a motion does not have the effect of a general appearance to foreclose the subsequent consideration of a plea of privilege.

(Point 5 is to the effect that the Court erred in holding that Collier waived his right to be sued in the county of his residence by filing and securing action on his motion to set aside the default judgment). 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.,).