I would not ignore the settled rule that an appeal from a judgment, whether it be a valid or void judgment, removes the cause to the appellate court, but that removal is only for the purpose of a review; and the rule should be considered in harmony with another well-settled one that a *Page 295 judgment void on its face is a complete nullity, neither binds nor bars any one, may be altogether disregarded, and no rights can be built up under it. Townsly-Myrick Dry Goods Co. v. Fuller, 58 Ark. 181. It is conceded that the judgment originally appealed from was void — both the judgment of the county court and that of the circuit court. A learned text-writer, speaking of such a judgment, says: "It does not terminate or discontinue the action in which it is entered, nor merge the cause of action, and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which void judgment was entered or in some other action. Such a judgment has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant." 1 Freeman on Judgments, p. 644. In another text-book on the same subject it is said: "Now, a `void' judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever, it has no effect as a lien upon his property, it does not raise an estoppel against him. As to the person in whose favor it professes to be, it places him in no better position than he occupied before; it gives him no new right, but an attempt to enforce it will place him in peril. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing their claims. It is not necessary to take any steps to have it reversed, vacated, or set aside. But whenever it is brought up against the party, he may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral." 1 Black on Judgments, 170. The appeal by the defendant in a void judgment being merely to get rid of it as a menace to his rights, it does not *Page 296 hinder or postpone the right of the plaintiff to secure a valid judgment. Such is the effect of the authorities cited above.
There was no error in the initial proceeding in the county court, but the error crept into the publication of the notice, and that rendered the judgment void. All proceedings thereafter, in either the county court or circuit court, were void, and the original petitioners had the right at any time to disregard the void proceedings and proceed from the point where the proceedings were regular. Now, the fact that the original petition had been carried to the circuit court on appeal and was lodged in the office of the clerk of that court constituted no obstacle in the way of the county court exercising its jurisdiction. The record of the county court on the last proceeding was regular and valid on its face, showing that the county court was in possession of all of the original papers when it rendered its last order creating the district. The proceedings in the county court were brought up to the circuit court on certiorari and not by appeal. We must assume, on this attack, that the county court acquired possession of the original papers so as to confer jurisdiction on it to proceed. I am therefore unable to discover any reason why the judgment of the county court is open to such attack, and my conclusion is that the circuit court was correct in refusing to entertain the petition for certiorari or to quash the judgment of the county court.
Mr. Justice SMITH entertains the same views as herein expressed. *Page 297