dissenting.
I respectfully dissent.
Without reaching the question of whether the return receipt fails to establish adequate service, I would hold that appellant has no right to complain of this default judgment by appeal.
The judgment by default was signed and entered on February 21, 1986. On March 21, 1986, while the trial court still had jurisdiction of the case, appellant filed his motion for new trial. In that motion, appellant not only failed to raise a point on invalid service, as mentioned by the majority, but stated affirmatively that “Service was had upon your Movant (appellant) by service upon its agent.” Appellant’s attorney swore to the statements in the motion by saying on his oath, “... Iam personally familiar with all the facts recited in Defendant’s Motion for New Trial and the same are true. I will so testify if called as a witness in this matter.”
On April 18, 1986, a hearing was held on the motion for new trial. Evidence was presented concerning events leading to the judgment as well as other matters. Again, appellant not only presented no evidence or argument concerning invalidity of service, but, when asked whether the client was *768served with citation on December 16, 1985, appellant’s attorney, testifying as a witness, stated, “That’s what the exhibit shows, yes.”
The filing of the motion for new trial constituted an appearance by appellant. Tex.R.Civ.P. 120, 122; St. Louis & S.F.R. Co. v. Hale, 206 S.W. 75 (Tex.1918). While such appearance was only effective as of the date of filing such motion, see St. Louis & S.F.R. Co. v. Hale, supra, there is no good reason why appellant’s admissions should not preclude it from contesting the citation on appeal.
Tex.R.Civ.P. 124 provides that judgment shall not be rendered against a defendant except upon service, acceptance or waiver of process, or upon an appearance by the defendant. Surely, appellant’s statements amount to an acceptance or waiver of process, if it is possible to accept or waive same after the judgment is rendered.
The majority cites numerous cases for the proposition that the judgment was void from its inception for lack of personal jurisdiction. Each of the cases cited, however, involve attacks on the judgments by writ of error, bill of review, injunction, mandamus, or some method other than appeal. In each of the cases, the trial court had lost jurisdiction of the proceeding, and the record before the appellate court failed to show a compliance with Tex.R.Civ.P. 124. While many of the cases state that failure to serve the defendant renders the judgment void, the facts do not lend themselves, nor is the point raised, that the persons against whom the judgment was taken admitted service before the trial court. The majority cites Dan Edge Motors, Inc. v. Scott, 657 S.W.2d 822 (Tex.App.—Texarkana 1983, no writ). While this case is a direct appeal, it is distinguishable from our case because the appellant raised the issue of lack of service before the trial court.
In Smith v. Amarillo Hospital District, 672 S.W.2d 615 (Tex.App.—Amarillo 1984, no writ), the lack of service was raised by appeal. In Smith at 617, the Court observes that the nature and quality of the party’s activities in the proceedings determine whether the party has made a voluntary appearance. The Court held that the defendant in that case had not voluntarily appeared, and, therefore, the judgment against him was voidable since the trial court had no personal jurisdiction over him.
The question of the terminology of void and voidable judgments was also addressed in Tidwell v. Tidwell, 604 S.W.2d 540, 542 (Tex.Civ.App.—Texarkana 1980, no writ) where Justice Ray, writing for the Court, observed:
The courts of this State have used the words void and voidable rather loosely on occasions. A judgment is void if the court rendering the judgment did not have jurisdiction over the subject matter, that is, the court did not have the power to hear and determine cases of the general class to which the particular one belongs. For example, a county court cannot grant a divorce and such judgment would therefore be void as distinguished from voidable because the court would be utterly without power to render an effective judgment on the merits of the controversy. Such a judgment may generally be directly attacked through appeal or writ of error. Such void judgment may also be attacked collaterally by a suit to set aside the judgment after it has become final or in a separate proceeding such as a trespass to try title lawsuit if such void judgment becomes material.
A voidable judgment is one in which the trial court has jurisdiction of the subject matter, but fails to gain effective jurisdiction over the defendant. Into this category will fall those cases in which a default judgment has been asserted to be void for want of service, or of valid service, of process. In those cases, when the judgment has become final and the time has elapsed for the filing of an appeal or an appeal by writ of error, the judgment can only be set aside by bill of review timely filed. Rule 329b, Tex.R. Civ.P.; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961); Deen v. Kirk, 508 S.W.2d 70 (Tex.1974).
Chief Justice Calvert also addressed this problem in McEwen v. Harrison, 162 Tex. *769125, 345 S.W.2d 706 (1961). In that case, a default judgment was taken against Texaco, Inc. The record failed to show proper service of citation or appearance by Texaco. After the time for filing a motion for new trial, or perfecting appeal from the judgment, had expired, Texaco filed a motion to vacate the judgment, which was granted by the trial court. After an extensive discussion of the history of Tex.R. Civ.P. 329b relating to motions for new trial, and after reciting the portion of such rule now largely embodied in section (f) relating the loss by the trial court of control of the case after the expiration of the appropriate period of time, the Court held that the trial court lacked power to vacate the judgment.
Chief Justice Calvert’s evaluation of the effect of the various alternatives available to litigants is instructive. At page 710, he states:
Our construction of the Rule will give a diligent defendant with a meritorious defense every opportunity to protect himself against an unwarranted default judgment. If he is not served with citation and learns of the judgment within 30 days after its rendition, he may file a motion for new trial, which the court is at liberty to grant, and if his motion is overruled he may obtain relief by appeal. If he does not learn of the judgment within 30 days after its rendition but does learn of it within six months, and the invalidity of the judgment is disclosed by the papers on file in the case, he may obtain relief by prosecuting writ of error to a Court of Civil Appeals. [Citations omitted.]
If the judgment is one which the court had jurisdictional power to render but it is invalid, he may obtain relief by bill of review as provided in Rule 329-b whether the invalidity is or is not disclosed by the papers on file in the case. Only if a court had no jurisdictional power to render the judgment should a negligent defendant or one with no meritorious defense to the suit be able to relieve himself of the burdens and consequences of a default judgment.
It seems consistent with Chief Justice Calvert’s reasoning that if service is not perfected and defendant learns of the judgment within the time for filing a motion for new trial, and files such a motion, the trial court should be given the opportunity to consider the defect in service and the facts surrounding same. In this connection, it is reasonable to interpret Tex.R.Civ.P. 324(b)(1) more broadly than the majority and require that a complaint of no service or defective service be raised in the motion for new trial as a prerequisite of appeal. The language quoted by the majority from Browning v. Placke, 698 S.W.2d 362 (Tex.1985), an original mandamus proceeding, was not necessary for the holding in that case. The limited holding was simply that the failure to join “indispensable” parties in a lawsuit does not render a judgment void, as to the parties properly before the Court.
I would hold the judgment against appellant was voidable only and that appellant either accepted service or waived same by its statements in its motion for new trial; overrule point of error number one; and proceed to consider appellant’s remaining points of error.