On Appellee’s Motion for Rehearing.
All parties herein urge motions for rehearing, and we will briefly dispose of the questions presented in a general way.
[9,10] On original hearing we held, in effect, that the judgment in favor of M. J. Smith against the appellant abstract company was not in this action subject to attack on the ground of a want of jurisdiction in the justice court which rendered it. It is clear, we think, that, as originally announced, the attack herein is a collateral one, and, said court being a domestic court with general jurisdiction within prescribed limits, and a want of jurisdiction not appearing on the face of the record, the judgment mentioned is conclusive as between all parties and privies thereto. Under such circumstances the necessary jurisdictional facts, when not recited, as in the case of the judgment under consideration, will be conclusively presumed to have existed. See, in addition to the authorities cited in our original opinion, 1 Black on Judgments, §§ 270, 271; Murchison v. White, 54 Tex. 78. In this connection, however, we think it should be noted that the authorities make a distinction between judgments of domestic courts and judgments rendered by courts of other states, or personal judgments against a nonresident, or judgments by courts deriving their authority from another sovereign power. Judgments of the latter classes may be attacked in a collateral proceeding on the ground of a want of jurisdiction over either person or subject-matter, even by evidence dehors the record, and by persons who are parties or privies on the face of the proceeding. Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. 506, 43 L. Ed. 808; 1 Black on Judgments, § 270; Bender v. Damon, 72 Tex. 92, 9 S. W. 747.
[11] Thus far we find no fault in our original opinion, but on reconsideration we have concluded that appellees were neither parties nor privies to the judgment of the justice court, and that hence they are not concluded from showing its invalidity in this action.
“The term ‘party,’ in the sense of one who is concluded by a judgment, includes all those directly interested in the subject-matter, and who had the right to control or defend the proceedings, examine and cross-examine witnesses, and appeal from the judgment.” See Words and Phrases, Second Series, vol. 3, p. 894, citing Allen v. McMannes (D. C.) 156 Fed. 615.
Again, the same author, on the same page, citing Perkins v. Goodin, 111 Mo. App. 429, 85 S. W. 936, says:
“The term ‘parties,’ as used in connection with the doctrine of res judicata, includes all who are directly interested in the subject-matter of the suit and have a right and are given an opportunity to make a defense, control the proceedings, examine and cross-examine the witnesses, and appeal from the judgment or decree in case an appeal lies. Persons not having these rights substantially are regarded as strangers to the cause. A mere nominal party, having no control of or interest in the suit, is not bound by the judgment.”
Says the same author on page 1219 of the same volume:
“Privity is defined to be a mutual or successive relationship to the same rights of property, and within the rules relating to the conclusiveness of judgments all persons are ‘privies’ to a judgment whose succession to the rights of property thereby adjudicated was derived through or under one or other of the parties to the action, and accrued subsequent to the commencement of that action.” Lamar County v. Talley, 127 S. W. 272.
Again in the same connection it is said:
“Privies, in such sense that they are bound by a judgment, are those who acquired interest in the subject-matter after the rendition of the judgment” — citing cases.
The same author gives numerous other definitions of like import of the terms “parties” and “privies,” and therefrom we think it clear that • appellee Mrs. McCormac was neither a party nor privy to the judgment of the justice court we have under consideration. Her right as mortgagee in the property involved in the judgment accrued not only prior to the rendition of the judgment, but prior even to the acquisition of the property by the abstract company against which the judgment was rendered. She was not made a party in the proceeding in which the judgment was rendered, had no right of control over the proceedings, had no right of appeal, and claims no right emanating from or under that judgment. On the contrary, her claim is in hostility thereto. As to persons in such relation to a judgment, it is said in 1 Black on Judgments, § 260:
“The rule that a judgment of a court of competent jurisdiction is conclusive, until reversed or in some manner set aside and annulled, and that it cannot be attacked collaterally by evidence tending to show that it was irregular or improperly obtained only applies to parties and privies to the judgment who may take proceedings for its reversal, and in no sense .extends to strangers.”
See, also, Freeman on Judgments, § 334; Murchison v. White, 54 Tex. 78.
[12] If then, the appellee’s plea and proof that the value of the property upon which the laborer’s lien in the justice court was foreclosed was in excess of ?200, the limit of the jurisdiction of the justice court, must be sustained, as appellee urges, the judgment of the trial court in this case must, as between the parties hereto, be approved to the extent necessary to free the property upon which the plaintiffs sought to foreclose their mortgage from the incumbrance, or apparent incumbrance, created by the judgment of the justice court. The sufficiency of the plaintiff’s plea to a want of jurisdiction in the respect pointed out cannot be successfully assailed, nor can the finding of the court to favor of appellees upon the issue be disturbed *1090because of the want of evidence. For the witness R. D. Davenport distinctly testified that the property specified in the judgment and upon which Smith’s laborer’s lien was foreclosed was of a value far in excess of $200. On original hearing we said:
“Contrary to what has been frequently declared in cases of contract liens, it has been held in a number of cases that, where a foreclosure of a statutory lien is sought, the amount and character of plaintiff’s debt or demand determines the jurisdiction of the court, and not the value of the property upon which the foreclosure is sought” — citing a number of authorities, including the leading one of Lawson v. Lynch, 9 Tex. Civ. App. 582, 29 S. W. 1129, which was a case of the landlord’s lien.
Appellee, however, now presses upon us a distinction between the landlord’s lien and a laborer’s lien that was made in the case of Railway v. Rucker, 38 Tex. Civ. App. 591, 88 S. W. 815. In that case it was held that the test of jurisdiction in contract cases applied as well in cases where a foreclosure of a statutory lien is sought, except where the statutory lien sought to be foreclosed was that of a landlord, under title 80 of the Revised Statutes. The case of Railway v. Rucker was distinctly approved by our Supreme Court in 99 Tex. 125, 87 S. W. 818, and, while the distinction is not entirely satisfactory to us, we nevertheless feel bound to apply the distinction here in the case before us.
It follows that appellee Mrs. McCormac and intervener R. D Davenport are entitled as against George and Nora Vaught, and as against all other parties to this suit, to a foreclosure of the liens in the order and as adjudged below. That this may be done, ap-pellee’s motion for rehearing will be granted, with an affirmance of the judgment below in all other respects; no error in other respects having been found.
[13] Appellees further insist that the judgment of this court should have been given against appellants and the sureties upon their supersedeas bond. This contention must be overruled, save as to costs, which will be adjudged, against appellants and their sureties as in other cases. No personal or money judgment whatever against appellants or either of them was rendered in favor of appellees Mrs. McCormac or Gray, and the intervener, Davenport, is not complaining. As against appellants the decree simply was that the mortgage lien declared upon should be foreclosed upon the property described in the mortgage and in the judgment, and the terms of the supersedeas bond, which is in compliance with the statute, bind appellants only to prosecute their appeal with effect, “and in case the judgment of the Supreme Court or of the Court of Civil Appeals shall be against them, they shall perform its judgment, sentence, or decree and pay all such damages as said court may award against it.” In the absence of a claim of damages for the delay .occasioned by the operation of the supersedeas bond, we do not understand that the principal and sureties thereon can be held liable for a debt not adjudged against the principals in the judgment below. Adoue v. Wettermark, 28 Tex. Civ. App. 593, 68 S. W. 553.
We conclude that appellants’ motion for rehearing must be overruled, and the judgment below affirmed as hereinbefore stated, and as in other respects in our original opinion provided, with all costs taxed against appellants and the sureties on their supersedeas bond.