(dissenting) : In the first instance the court rendered judgment against the plaintiff in error without jurisdiction acquired as prescribed by law. The judgment was a void one for that reason. The plaintiff in error treated it as a void judgment and moved the court to vacate it as such, under the provisions of section 575 of the code (Gen. Stat. 1897, ch. 95, §§ 602, 608; Gen. Stat. 1899, § 4869). The' *180ground of the motion was that the court was without jurisdiction. There were some statements in the motion by way of excuse for the delay or for failing to object in the first instance to the rendition of the judgment, which were mere surplusage.
The court sustained the motion and entered an order setting aside and vacating the judgment, and adjudged that it be held for naught.
At the next term of court, without any steps being taken to give the court jurisdiction to render judgment against the defendant, another judgment was rendered against him and a codefendant, who was originally named in the petition, who had been served with summons, but against whom no judgment had been taken.
The facts charged in the motion to vacate the first judgment were that the plaintiff and this codefendant had fraudulently colluded together for the purpose of imposing upon the court and giving it an apparent jurisdiction of the plaintiff in error, and to further that design the codefendant had put his name on the back of the note sued upon as guarantor, not in good faith ; that no liability was assumed thereby, but, on the contrary, it was agreed that no judgment should be taken against him and in fact none was taken.
The judgment of the court sustaining this motion is in effect a finding that the grounds of the motion are true and that the court was without jurisdiction to render a judgment against the defendant.
No further steps having been taken to confer jurisdiction upon the court to render the subsequent judgment against him, it was likewise without jurisdiction and void, and the motion to vacate it should have been sustained.
*181There was nothing left of the cause pending in the court and no issue left to be tried.
The court, on the first motion, did not award a new trial in any sense under any of the provisions of the code; it vacated a fraudulent void final judgment and that terminated the cause.