¶1ON MOTION FOR REHEARING
¶2In Ex Parte Brown, 382 S.W.2d 97 (Tex.Sup., 1964) it was stated:
“It has also been held that the court may enter an effective temporary custody order upon the taking of a non-suit in the divorce action. McClendon v. McClendon, Tex.Civ.App., 289 S.W.2d 640 (no writ). This holding of the McClendon case is sound, but we do not approve the statements in the opinion of the Court of Civil Appeals indicating that the trial court might properly have made a custody determination that would have been final and permanent in the absence of some material change in circumstances. A district court must be in position to protect the interests of any minor that is brought before it, but this can be done by the entry of temporary orders in the unusual situation where the case in which its jurisdiction was invoked is dismissed. It is not necessary for the court to make a final adjudication of custody when no one is seeking that relief.”
¶3Clearly, the Supreme Court, in Ex Parte Brown has stated that in McClendonthis court was correct in its “holding” necessary to disposition of the case but incorrect with respect to dicta, i. e. statement made upon the law not requisite to such “holding”.
¶4On rehearing it is contended, upon authority of the quoted statement from Ex Parte Brown that even if the trial court had jurisdiction as to the minor, Shannon Strange, its authority thereunder did not include power to render the final custody decree apparently contemplated by the trial court’s judgment, or instrument of judgment, dated November 6, 1969, and that such judgment was therefore absolutely void and without force as a final decree.
¶5If defendant/appellant is correct in his contention that such judgment was absolutely void (as distinguished from voidable) then he continues to have the right to attack it collaterally at any appropriate time and occasion.
¶6On the instant appeal, however, by direct attack thereupon he seeks an adjudication by this appellate court which would declare such judgment wholly void and a nullity *220from time of its entry, or, alternatively, to have the court declare it invalid incident to a holding that he has successfully “avoided” it as an effective judgment (distinguished from one wholly void on the face of the record). Ordinarily the work of the appellate court in such circumstance is to test the points of error complaining of the judgment under attack, once the merits thereof are considered. Here, however, in view of the reason for dismissal of the.appeal we never consider the merits of the defendant’s points.
¶7For purposes material to this appellate court at this time and to the complaint of the action of the trial court in the proceedings culminating in the judgment of November 6, 1969, we may and do disregard the possibility that the defendant/appellant might be correct in his contentions.
¶8What defendant/appellant has lost, as result of our action dismissing the appeal because of his disobedience and contempt of a proper order of the court, is any right to a reversal of the judgment because of any merit in the points of error he desires considered, including any right to which he otherwise might have been entitled. This right he has forfeited even though the points might show the judgment to have been voidable or even void.
¶9Defendant/appellant has also filed and we have considered his motion contending that there is a lack of appellate jurisdiction in this court at this time and as applied to this case to do anything other than to remand to the trial court because the trial court had no in personam jurisdiction of the person of the defendant at time of the judgment of November 6, 1969. Therefore, he contends, the judgment would at most be interlocutory merely, particularly as applied to child custody, and not final and appealable; and that there exists no appellate jurisdiction to do other than to so declare and to remand the case to the trial court.
¶10Our dismissal of the appeal would be warranted even had the contention been a part of the defendant’s points of error. Indeed, under our interpretation of them it was embraced thereby. In any event it would not alter the occasion for our judgment dismissing the appeal for we do not consider this court obliged to pass upon the merit of any of the defendant’s contentions.
¶11Motion for rehearing is overruled.
¶12Motion to remand for lack of appellate jurisdiction is overruled.