This wаs a proceeding by plaintiff in error against defendant in error and others to enjoin the execution of a judgment rendered against it as surеty upon a replevy bond in a garnishment suit wherein defendant in error was plaintiff and City National' Bank of Wichita Falls, garnishee, was defendant. The triаl court refused the injunction and the Court of Civil Appeals affirmed that judgment.
The opinion of the Court of Civil Appeals disclоses that the attorney for the Southern Surety Company, this plaintiff in error, was notified of the rendition of the judgment against that company at the timе it was rendered, and that no steps were taken to prosecute an appeal therefrom. The judgment appears to have been rendered by Judge Scurry, the regular district judge. The evidence shows that, though the" attorney for plaintiff in error was in the courthouse at the timе the judgment was rendered, no effort was ever made to set the judgment aside or to perfect any appeal. There is no contеntion either in the plaintiff in error’s pleading, or in the evidence, that the surety company has any meritorious defense to the suit against it; the sole ground of relief being that the judgment is void because the judgment in the" parent case was void for the reasons stated, or at least not finаl so as to support the judgment in the garnishment case.
By way of a preliminary, we may say. we consider this proceeding as a direct attаck upon the garnishment judgment rendered against plaintiff in error upon its replevy bond, and therefore the relief sought is available, whether suсh judgment be absolutely void or merely voidable. Crawford v. McDonald,
There has been much laxity in the opinions with respect to the use of the terms “void” and “voidable” as, applied to judgments. Strictly speaking, a void judgment is one which has no legal force or effect whatever. It is an аbsolute nullity and such invalidity may be asserted'by any person whose rights are affected, at any time and at any place. It need not be attаcked directly, but may be attacked collaterally whenever and wherever it is interposed. Usually it carries the evidence of its invalidity uрon its face, while a voidable judgment is one apparently valid, but in truth wanting in some material respect; in other words, one that is erroneоus. Such vice may be the want of jurisdiction over the person or other similar fundamental deficiency, but which vice does not affirmatively appear upon the face of the judgment. In this case the judgment attacked being regular upon its face, rendered by a court of cоmpetent jurisdiction, and the jurisdictional facts appearing upon the face of the judgment, it cannot be said the same is
But the distinction between void and voidable judgments is not material to the decision of the question before us, since, whether the present judgment is void or voidable, the plaintiff in error is not entitled' to set the same aside, or, what is the same thing, to perpetually enjoin its enforсement, without bringing itself within the rules of equity applicable to such proceedings. It is clear from the record that plaintiff in error knew of the rеndition of the present judgment, and had ample time to have proceeded by motion for new trial or by appeal or writ of error tо set it aside. Having thus at its disposal the option of at least three distinct legal remedies, it will not be permitted to neglect the exercise of such remedies and to resort to a court of equity to stay the enforcement of the law’s decree. Its want of diligence is fatal. Galveston, etc., Ry. v. Ware,
'Moreover, as above indicated, there is •no contention that plaintiff in error has a meritorious defense against plaintiff’s demand. There is nothing in the pleading tendering a trial anew upon the merits, and for this reason also no other judgment could have been rendered than one against petitioner. The proceeding contemplated a retrial of the merits of the case, that сomplete equity might be done, and this was not possible under the pleadings. Brown v. Clippinger,
In disposing of the case, we have treated the judgment in the garnishment case as distinct and apart from the judgment in the original case. This is as it should be. The statute contemplates that the garnishment proceeding shall be treated as a separate case, and it is so treated throughout, dependent, of course, upon the finаl procurement of judgment in the parent case, but, nevertheless, subject to a judicial inquiry and determination as other causes are. It hаs all the elements of a separate suit. It is separately tried, possibly in a different court, the judgment therein is not binding on the original defendant (unless- made a party thereto, Johnson v. Hall [Tex. Chv. App.]
We recommend that the judgments of the Court of Civil Appeals and of the trial court be in all respects affirmed.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.