¶1 On Motion For Rehearing.
¶2 Appellants’ point that the judgment rendered by the chancellor herein cannot be upheld because it is a collateral attack upon' the judgment in the McQueen case, was considered and regarded as not available or applicable, but through inadvertence no mention of it was made in the opinion.
¶3 We do not regard this case as making any attack upon the McQueen judgment. Hence no question of collateral attack is involved. No relief against that judgment is sought or granted. The McQueen ease decided one thing, the present case determines an entirely different thing; the former involved only the legality of the city’s authorization of the improvement, the latter passes upon the legality of the contractor’s performance of the work. This last was not in issue in the McQueen case and could not have been made an issue since at the time it was tried performance of the work was not accomplished, nor had the time therefor expired. If it be said that, in so far as the decree herein finds that the McQueen case was a sham, it is a collateral attack therein, then it can be said in answer that the plaintiff herein was not a party to the McQueen case nor in privity with anyone who was or should have been a party. Hence his right to show, in this case, that the McQueen case was in law collusive, is not impaired.
¶4 The motion for rehearing is overruled.