*141On Motion for Rehearing.
NORVELL, Justice.Upon rehearing, appellants urge that the trial court committed reversible error in admitting in evidence the judgment rendered in the original tax lien foreclosure proceedings. Our attention is particularly-directed to Glaze v. Johnson, 27 Tex.Civ.App. 116, 65 S.W. 662, and Texas Co. v. Dunlap, Tex.Com.App., 41 S.W.2d 42. In the Glaze-Johnson case a tax lien foreclosure judgment, based upon citation by publication, was involved and the property subject to the lien had been bought in by the City of Houston, the plaintiff in judgment. The Galveston Court of Civil Appeals, in effect, held that Article 1378 of the 1895 Revised Civil Statutes was inapplicable to judgments ordering foreclosures where the plaintiff in judgment became the purchaser at the sale ordered by the judgment.
In Texas Co. v. Dunlap, the Commission of- Appeals held that Section 3 of Article 2236, 1925 Revised Civil Statutes, was likewise inapplicable to judgments when the plaintiff in judgment was the purchaser at the sale ordered by the judgment. The holding was based upon the theory that as the Court of Civil Appeals had given a certain construction of Article 1378, 1895 R.C.S., in Glaze v. Johnson and the Supreme Court had refused a writ of error, the Legislature, by enactment of the article in substantially similar wording in the 1911 and 1925 Revised Civil Statutes had intended also to adopt the judicial construction theretofore placed upon the article.
Based upon these authorities, as well as Houston Oil Co. v. McCarthy, Tex.Com.App., 245 S.W. 651, appellants contend that the tax foreclosure judgment was inadmissible in evidence. And it is further asserted, in effect, that the trial court should have rendered judgment for appellants upon the trial court’s finding that they and their predecessors in title, for a period of ten years prior to August 19, 1940 (the date appellee acquired possession of the property), had been in continuous, adverse, peaceable, hostile and open possession of said property, using and enjoying the same. Article 5510, Vernon’s Ann.Civ.Stats.
The action (No. 48333) which resulted in the judgment here appealed from was originally filed in the 41st District Court and then transferred to the 65th District Court. The date of the filing of the action is not disclosed by the transcript, however, in an amended petition filed September 24, 1940, appellants pleaded a statutory trespass to try title action coupled with a special plea of limitation under the ten-year statute.
Appellee answered with a plea of not guilty and a special plea in which he asserted title under and by virtue of the tax lien foreclosure judgment (Cause No. 45260) alleging that said judgment was in all things good and valid.
Appellants in order to show a common source of title introduced in evidence the .judgment rendered in said cause No. 45260, as well as a motion for new trial filed in said cause by Elizabeth Wilhelmina Seymour, joined by J. J. Watts and Wilfred L. Seymour, executors under the will of David Silvestre Fenchler, deceased, all of whom were parties plaintiff in this cause No. 48333 and appellants here. (Magdalena K. Gutting, plaintiff below and appellant here, was apparently served with personal citation in the tax lien foreclosure proceedings.) .
This motion was filed on June 18, 1940. The judgment sought to be set aside was rendered on June 22, 1938. It also appears that on August 5, 1940, cause No. 45260, including all proceedings then pending therein, was transferred from the 41st to the 65th District Court.
After appellants had rested the appellee offered in evidence the judgment rendered in cause No. 45260 for all purposes. This was objected to on the ground that the judgment was not a valid, final and binding judgment and could not properly be considered as a muniment of title.
The above statement makes it clear that appellants (other than Magdalena K. Gutting, who could not properly file a motion for new trial under Article 2236) were the actors in two separate suits or legal proceedings. Both proceedings had one issue or question in common — the validity of the judgment rendered in cause No. 45260. Certainly appellee could and had the right to assert the validity of his title and the validity of the judgment upon which such title was based in the action brought against him to recover the premises to which he asserted title. This he did do by appropriate pleadings. When the issue of the validity of the judgment in cause No. 45260 was raised in this trespass to try title cause, either by the filing *142of the petition or answer, and also in tax lien foreclosure suit (Cause No. 45260) by the filing of a motion for new trial therein, appellants were in a sense put to an election. Being the actors in both proceedings, they could, as Dunlap did in Texas Co. v. Dunlap, supra, proceed with the motion for new trial, or they could, as they did in this case, proceed with their trespass to try title suit. Appellants chose to have the issue of the validity or invalidity of the judgment determined in this action, and the holding of the trial court that the judgment was valid must be considered as correct in view of the evidence. This holding, while one of substantive law, determines the question of the admissibility of the judgment in evidence.
We think that judgments based upon citation by publication are interlocutory only until such time as their validity is actually determined and established by a proper proceeding in a court of competent jurisdiction having the parties at interest before it.
Ordinarily’a proper proceeding in which to test the validity of a judgment based upon a citation by publication is the statutory motion- for new trial. From the standpoint of the defendant in judgment it is probably the most efficacious remedy- — one he has the legal and statutory right to pursue, should he elect to do so, but this does not mean that from the standpoint of the defendant in judgment the statutory motion for new trial is exclusive, and if such defendant in judgment elects to pursue to judgment another remedy, even concurrent or cumulative in nature, he is bound by the decision he invokes upon the issues presented in such proceeding. Pullman Co. v. Hoyle, 52 Tex.Civ.App. 534, 115 S.W. 315, 318; 18 Am.Jur. 136, § 13.
We are unwilling to hold that a party may by the simple expedient of filing a statutory motion for new -trial deprive an opponent of the right to raise and have determined the issue of the validity of a judgment under which the opponent claims, when said judgment and title thereunder are attacked in a separate action by him who filed the statutory motion.
The record here presents a situation entirely different from one in which the defendant in judgment is not á party to an action in which a.judgment based upon a citation by publication is relied upon by strangers to the judgment or even by the plaintiff in judgment as a muniment of title.
Appellants’ motion for rehearing is overruled, but in view of the holdings set forth in this opinion upon rehearing, appellants may file a second motion for rehearing within the usual fifteen-day period from this date.