on rehearing.
Per Curiam.The petition for a rehearing in this case is so ably and exhaustively urged in the printed brief, and argument filed in support thereof, that it has been thought due to counsel to file this additional opinion in overruling the same.
Counsel in this argument say: It is as true now as it was upon the first appeal that notice of the judgments *99and sales is not brought home to the company. ” Let us see as to this. An examination of the new evidence discloses that the witness Duffy mailed early in September, 1883, the following letter, duly addressed, to Kellogg, at Denver, postage prepaid: “Sept. 5th. A. W. Kellogg, Esq. — My Dear Sir: The personal property of the Great W. M. Co. was sold yesterday by the sheriff. Prices were pretty good for a sale of that kind. The real estate was bought in for just enough to cover the judgments. A party wished me to ascertain who owns the Shamrock on Mt. Cameron. He wants to do the assessment work. You attended to this last year. All well. Yours truly, Thomas W. Duffy.”
In the absence of evidence to the contrary, we must assume that this letter was received by Kellogg, in due course of mail, within a few days after it was posted; and, by the evidence of Bartley, it is shown that Kellogg was fully informed by him of such sale upon the 21st day of the month of November following.
William H. Hammond testifies: “Isaw A. W. Kellogg in the office of the Great West Mining Company, in Denver, on May 31,1883. Mr. Whitaker, who was also connected with the Great West Mining Company, was present. A. W. Kellogg was general manager of the Great West Mining Company at the time. I had a talk with them at that time, telling them if they could raise $5,000 to lift those judgments they would have a good thing. Kellogg replied that they could raise no money. The judgments referred to were those claims assigned to John T. Perkins and the Moynahan claims. Kellogg also said that Pomeroy tried to raise the money, but could not. I asked .them for money due me at that time, which was due me for work on the mine from January 18, 1883, up to May 29,1883. What money was due me prior to January IS, 1883, was included in the Pei’kins suit.”
In considering this evidence, it is to be borne in mind that Kellogg and Whitaker were two out of the three *100directors of the defendant company,— the one general manager, and the other secretary and treasurer,— occupying the same offices, with constant communication with each other. Can it be said that the trial judge was not warranted in finding that Whitaker, at least, as well as Kellogg, had notice of the sales of real estate, notwithstanding the denial of Mr. Whitaker? Pomeroy is also shown to have had knowledge of these attachment suits as early as the fall of 1883. The evidence shows that the personal property brought less than $500 at the sheriff’s sale. That this was a fair price, under the circumstances, must be presumed. The Perkins and Moynahan judgments, with costs, aggregated something over $3,000. Is it reasonable to believe that the officers of the company could have expected these judgments to have been paid from the proceeds of the personal property alone?
Kellogg, in all his acts, appears to have been governed by a desire to advance the interests of the Great West Mining Company; and we can find no foundation in the record for the charge made by counsel that he “leagued himself with the creditors of the company, and aided them, either actively or passively, in the work of- fraud, concealment and spoliation.” It was only after he had failed to secure funds with which to pay the creditors of the company, and when Moynahan was on the eve of commencing suit by attachment for his claim, that he arranged for the laborers to attach the company’s property as security for the amount due them in the development of the mines. By pursuing this course, it appears that Kellogg entertained the idea that the men would continue this work; and, as long as the work of development continued, there was a chance for the discovery of richer mineral, in which event the company might be benefited by such new discoveries, if made before the sale, or even before the expiration of the time for redemption. Under the circumstances, we cannot say that *101his course was not prompted by a desire to benefit the company of which he was the general manager.
It is also said in support of the petition for a rehearing: “There is not a syllable of testimony to show that any officer of the company had any knowledge," notice or suspicion that these judgments were either fraudulently procured, or rendered without jurisdiction, until just about the time suits were brought.” It does appear, however, that Kellogg, the general manager of the company, caused the Perkins suit to be instituted; and we think the testimony was sufficient to warrant the trial court in finding that both he and Whitaker knew the attachments had been levied upon the property; that the property had been sold as the result of such attachment proceedings; and that the purchasers were in possession, claiming and exercising the rights of owners. Here was certainly sufficient notice to demand further inquiry, and such inquiry would undoubtedly have disclosed all the facts in reference to the service upon Purmort, and the appearance of Gfwynn. If such inquiry was not in fact made, it is quite immaterial whether the failure to make it resulted from negligence or design, or was rendered unnecessary by reason of the officers having full knowledge. They must be taken to have had notice of such facts as they would readily have ascertained, had they used ordinary diligence.
In the opinion recently filed in this case the following language is to be found: “Defendants were lulled into purchasing and making expenditures upon this property which they otherwise might not have made.” And counsel say: “We fear some one must have dreamed all this, for there is absolutely nothing in the record to justify such statement.” In this statement counsel is certainly in error. Although it'may be proper, for some purposes, to separate the new from the old evidence, it is also proper to consider the whole; and, doing this, we find it to be practically conceded that the Wilsons paid §2,000 *102as the first instalment upon the purchase price of this property, and they certainly had taken nothing out at that time. In addition to this, we have the uncontradicted testimony of Alfred H. Wilson to the effect that they (the Wilsons) had paid out about $13,000 in working the mine since Gwynn turned it over to them, in addition to paying $8,194, the original purchase price of the property; and it was agreed between counsel that, if Randall W. Wilson was on the witness stand, and the same questions were propounded to him that have been propounded to his brother, Alfred H. Wilson, his answers would be substantially the same.
In view of this testimony, and the manner of working the mine, — its remoteness from the ore market, — is not the court warranted in concluding that at least a portion of the $13,000 was expended upon the property before any sum could have been received from the sale of the ore extracted, although such ore netted them a profit of about $3,000? And there can be no doubt, under the evidence, that whatever .sum was in fact so expended was expended upon the faith the Wilsons had in the title procured by them from the purchasers at the sheriff’s sale.
Counsel say that this court ‘ ‘ has given effect to evidence that was overwhelmingly contradicted by other evidence (which is not alluded to) and to have assumed conditions of fact against all the evidence bearing upon the questions.” We have endeavored to demonstrate by the record that there is sufficient evidence to support the findings of the trial court in favor of the defendant, and to this end have, it is true, more particularly alluded to evidence tending to warrant the judgment. It was the peculiar province of that court to judge of the credibility of the witnesses appearing before it, and determine the weight to be attached to the testimony of each. Its opportunities for so doing were far better than, ours, and, in obedience to well-settled rules, we must accept *103Its conclusions where the evidence is conflicting; it not appearing that the court misunderstood the evidence, or misconceived either its scope or effect, or that it acted unreasonably in determining its weight. There are upwards of one thousand folios in this record, and we cannot undertake to discuss in detail all the evidence contained therein.
It is maintained that the general subject-matter of this cause is of legal as well as equitable cognizance, and that, therefore, the court must be governed by the statute of limitations applicable to an action at law, instead of by the equitable doctrine of laches; the argument being that plaintiff could attack these judgments in an action of ejectment at any time within five years, and that it cannot be cut off from relief in this equitable action in a shorter time on account of its laches. To permit the plaintiff to. attack these records, regular upon their face, in an action for possession of the property, under the code, in the nature of ejectment, would be to allow the judgment of a court of record to be destroyed in an action in which the pleadings would give no notice of any claim that the judgments were invalid. We cannot concede that this may be done. Public policy, as well as the spirit of the code, require that the opposite party shall be apprised by the pleadings of the nature of the defect relied upon to defeat such judgments. As a rule, a judgment of a court of general jurisdiction is not void unless it appears from the record itself that the court in pronouncing it acted without jurisdiction. A judgment rendered without bringing the defendants into court is not for this reason void, but voidable only, unless the failure to obtain jurisdiction over them appears from the record. Allen v. Huntington, 16 Am. Dec. T02; Freem. Judgm. § 116; Owens v. Ranstead, 22 Ill. 161; Ridgeway v. Bank, 11 Humph. 523; Hahn v. Kelly, 34 Cal. 391.
That this distinction has been kept constantly in mind *104by this court is quite apparent from the qualification expressed ‘in each instance in which the judgments are alluded to in the former opinions of this court as being “absolute nullities ” under certain conditions.
The proceedings being regular upon the record, the judgments can only be avoided upon extraneous evidence. Eor the reasons given in the opinion recently filed, in our judgment, appellant, by its laches, is now shown to be precluded by well-settled rules from showing the invalidity of the judgments. The petition for a rehearing must be denied.
Rehearing denied.