On Rehearing.
As stated in the original opinion, but one reason was alleged to show that the judgment in the justice’s court was void. The rea•son stated was: “That the bond filed by the plaintiff was invalid for the reason that it was not filed in the time required by law because the same was not filed at the time of filing the plaintiff’s complaint, as such complaint was filed on the 24th- day of January and said bond was filed on the 25th day of January, 1933.” This was at most a mere irregularity. The justice’s court being a court of general jurisdiction in suits of forcible detainer, the irregularity, if it was such, could only be corrected by appeal or certio-rari.
It is argued in appellant’s motion for rehearing that “the case in justice’s court was not a suit for forcible entry and detainer.” The only reason given to support this statement, however, is: “That the plaintiff in the suit in justice’s court was not in possession of the premises nor never had been when the suit was filed.” That reason, it seems to us, would at most only show a defect in the complaint and not that the action was something different from an action of forcible detainer, and therefore a suit of which the court had no jurisdiction. This point was raised and determined at an early date in Chadoin v. Magee, 20 Tex. 476, and Gibson v. Moore, 22 Tex. 611. In the first ease it was held that:, “If, as alleged, the defendant therein had never been in possession, and had no right of action by forcible entry and detainer, his having instituted the proceeding would only put the defendants therein to the necessity .of making their defence, to make manifest his want of right.” In the second case the court said: “So, also, it has been decided, that an injunction will not lie, to restrain the prosecution of an action of forcible entry and detainer, on the ground that the plaintiff had never been in possession, and had not the right of possession, or of action. His having brought suit, without good cause of action, would only require of the defendant to interpose his de-fence, and. assert his remedy in that form [forum?].”
In Gibson v. Moore the contention was also made, as here, that the justice’s court was without jurisdiction. The materiality of that fact was denied on the authority of Smith v. Ryan, 20 Tex. 661, from which we quote as follows: “The want of jurisdiction would be as available a defence in that Court as in any other; and if it failed, the appellant had his remedy by certiorari, througn his tenant in possession. ⅜ '* ⅜ The injunction was therefore properly dissolved even upon the supposition that the petition showed that the Justice’s Court had no jurisdiction of the case.”
At the time Galveston, H. & S. A. Ry. Co. v. Ware, 74 Tex. 47, 11 S. W. 918, was decided, the law had been settled by judicial decisions that execution of a judgment could not be enjoined where the judgment was voidable, and there existed a remedy by appeal or certio-rari. In the last mentioned case that rule was held to apply, not only to voidable judgments, but to void judgments as well. This holding was reaffirmed in Texas-Mex. Ry. Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 31 L. R. A. 200.
*579The record does not support the contention, we think, that the pleading in justice’s court shows that the action was not one for forcible detainer. Appellant recognized it as such by referring to it in his answer as “plaintiff’s complaint in forcible entry and detainer.” It is immaterial that the complaint on its face may have been defective. If it be granted that it was defective in stating a cause of action for forcible detainer, it certainly does not show that the action was one seeking to litigate a question of title to the land or was of some other character which it could be said that the justice’s court was wholly without jurisdiction to entertain.
We are therefore of opinion that the motion for rehearing should be overruled, and it' is accordingly so ordered.