
    Smith v. The State.
    ■Smith, an attorney at law, filed a brief in the Supreme Court in a case wherein he was appellant, in which he used language reflecting on the judges of the second and third judicial districts. The judge of the second judicial district caused Smith to be cited to appear at the next term of the District Court for Travis to show cause why his license should not be canceled. Smith appeared and made defense; the judge ordered his name to be stricken from the roll of attorneys; there was no trial by jury, nor did it appear that a jury trial had been demanded; the Supreme Court had, previous to the issue of the citation, issued an attachment against Smith for the same cause, and it was still pending: Held. That the order or judgment striking the name of Smith from the roll of attorneys could not be successfully impeached in a collateral proceeding.
    Error from Goliad. This was an information by two practicing attorneys against the defendant, Smith, for attempting to practice law without a license. Tile attempt to practice was admitted. The facts were as follows:
    “That Joseph E. Smith, the defendant, was regularly licensed to practice law in all the inferior courts of this State-by the Hon. M. P. ÍT.;ftan„ judge of the fourth judicial district, on the 22d day of September, 1817; that his home from that time to the present has been at Victoria, Texas; that he filed a brief in the Supreme Court, or caused it to be done, on the 20th day of December, 1847, in his own defense in a case pending there, in which he was appellant and James Power appellee; that said brief cast out some reflections on Judges William E. Jones and R. E. B. Baylor, presiding judges of the District 'Courts, by innuendoes; that for said language the Supreme Court attached him for a contempt of court; that the order was made on the 22d day of April,. 1848, and that the writ of attachment was issued on the 1st day of May, 1848;. that In the fall of the same year it was served on the body of said Smith; that he appeared before the Supreme Court at its December Term, 184S, and on the 26th day of the month he filed his defense; that he has not been discharged, but that the case is still pending; that at the Pall Term of the District Court of Travis county, on the 7th day of October, 1848, William E. Jones, presiding-judge of that district, entered up a rule of court against the said Smith, and ordered that he be cited to appear at the next term of the District Court and show cause why his license as a lawyer should not be canceled for the language he used in his own defense in the brief filed in the Supreme Court on the 20th day of December, 1847, in the ease of Joseph P. Smith, appellant, v. James-Power, appellee; that said Smith appeared and filed various defenses, but they were all overruled, and he was stricken off the roll of attorneys*”
    The defendant was fined fifty dollars.
    
      J. F. Smith, for himself.
    Two errors are assigned to the judgment of the-lowcr court:
    1st. That the judgment of the District Court of Travis county upon which-this judgment was based was a nullity, as the court had no jurisdiction of the pretended offense.
    2d. The judgment of the lower court in this case decided, in effect, that constructive oí’ consequential contempt had been committed by the defendant, and that he could be dlsfranchished without the right of trial by jury.
    The defendant seeks to reverse the judgment of the lower court upon these-grounds of error assigned.
    The statement of facts shows that at the time of the judgment of the District Court of Travis county canceling his license the defendant was regularly domiciled in the town and county of Victoria, and had been so long before that time, and had remained so domiciled to the present time. The court of Travis-county then had no jurisdiction over the person of the defendant, for the statute of 1846, page 363, says that no man shall be sued out of the county of his domicile. The statement of facts also shows that the District Court of Travis county have no jurisdiction over the pretended offense, for it shows that this court had taken jurisdiction of the same offense; and no court but the one offended has jurisdiction of contempts. (1 Bouvier Law Die., 337; 1 Kent Comm., p. 300.)
    Then, as the court of Travis had no jurisdiction of the case, but another court had, its judgment is a nullity; and that nullity may be shown in any collateral proceeding. (De Leon v. Sutherland, 1 Tex. R., 310; Mason v. Bus-sell’s I-Ieirs, Id., 727; 2 Cr. R.; Elliott v. Piersol, 1 Pet. R., 340; Hickeys. Stuart, 3 How. TJ. S. R., 760.) “In all cases of concurrent jurisdiction the court which first has possession of the subject must decide it.” (9 Whe. R., 632.) And it must follow that the judgment of the lower court in this case must be reversed, as it is based upon a nullity.
    The statement of facts shows that the offensive language was used in the Supreme Court in the defense of the defendant’s own case, and was a pri-. vate act for which the defendant can only be responsible to a jury of his country in the manner pointed out in the Constitution. (Constitution of United! States, Judicial Power, 2d section, 1st article o£ Amendments; Constitution of Texas, Bill of Rights, 5th and 8th sections.) All the late decisions, both of England and America, show that no constructive or consequential contempt can be committed. The act must be in open court or in the resistance of the process of the court. (1 Kent Comm., 800; 1 Bouvier Law Die., 337; 3 Wils. R., 1S8; 14 East R., 1; 2BayR., 182; 6 Wheat. R., 204; 7 Wheat. R., 38; 1 Breese R., 266; 1 J. J. Marsh. R., 575; Charlt. R., 136; 1 Blackf. R., 166; 9 Johns. R., 395; 6 Johns. R., 337.)
    
      Attorney General, for appellee.
   Lipscomb, J.

We can perceive no error in the judgment. The defenses all amount to an attempt to impeach the judgment of the District Court in a collateral way. Slow this cannot be done unless it should appear to this court that the court rendering the judgment had no jurisdiction. We can entertain no doubt but that the court had jurisdiction of a contempt. Whether it exercised it correctly is a question that can only be investigated on a proceeding having directly in view its reversal. None of the objections taken go to the jurisdiction of the court rendering the judgment, but all of them constitute at most only such matter as should have bee\i offered in defense on the trial of the contempt. If they had been offered and overruled on the trial, the correctness of the decisions of the court in so overruling them could have been examined in this court on an appeal or writ of error from the final judgment of the court in the matter. The judgment of the court of Travis county, being a court of competent jurisdiction, whether it be erroneous or not, must be conclusive in all courts when it may be drawn collaterally before them until it has been reversed or set aside by a court of competent jurisdiction to try the errors that may have been committed in a proceeding instituted for that express object. This doctrine has been so fully discussed and firmly settled that it is not now to be questioned. (Sutherland v. De Leon, 1 Tex. R., 250; Lynch et al. v. Baxter and Wife, decided at the last term of this court, but not published.)

We are therefore of opinion that there is no error in the judgment of the court below, and that it be affirmed.

Judgment affirmed.  