143 S.W.2d 836 | Tex. App. | 1940
Amicable Life Insurance Company instituted this suit in the District Court of McLennan County, by bill of interpleader filed on February 22, 1940, against J. W. Renfro, Mrs. Ruth O. Booth Buvens and husband, and Mrs. Mary Elizabeth Booth, as claimants to the sum of $3,495.68 due on three certain policies of insurance issued to Euwell Booth as insured. The company admitted its liability to pay such sum to the rightful claimant, and simultaneously with the filing of its petition it deposited that amount into the registry of the court, there to abide judgment in the cause. It alleged that each of the defendants had asserted and was claiming the right to receive the entire amount due under such policies, and it plead facts showing that it was in real doubt as to which df the claimants was entitled to receive the proceeds. It further alleged that it was threatened with litigation by reason of such conflicting claims against which it had no adequate remedy at law. It prayed for the immediate issuance of a temporary injunction, enjoining each of the defendants from instituting any suit or proceeding in any court on account of the proceeds due under said policies, and that upon final hearing, the court determine the cause and approve its payment into the registry of the court of the amount due under said policies, that it be discharged from further liability, and that such injunction be made permanent.
Upon the presentation of the petition, the trial court, without notice to the adverse parties, entered his order granting the injunction upon the filing of proper bond, and directed the clerk to issue the writ, together with a copy of' the court’s order requiring the defendants to file their respective answers or other defense to the bill of interpleader, on or before the beginning of the next regular term of court on the 11th day of March, 1940, and to show cause, if any they had, as to why the plaintiff should not be discharged from further liability, and recover its costs. The required bond having been filed and approved, the writ of injunction, together with a copy of the court’s order granting the same, was properly issued and served on Mrs. Booth on February 26, 1940.
On March 8, 1940, Mrs. Booth, individually and in her capacity as temporary ad-ministratrix, filed in this cause her motion to dissolve the temporary injunction, alleging that on March 6, 1940, she had filed application in the probate court of Harris county to be appointed temporary admin-istratrix of the estate of Euwell Booth, and that an order was then entered by such court so appointing her, with authority to prosecute claim for the funds which the Insurance Company had tendered into the registry of the district court of McLennan county. She also filed her plea in abatement, and her answer, consisting of general and special exceptions, a general denial, and her claim that neither J. W. Ren-fro nor Mrs. Buvens had any insurable interest in the life of the deceased at the time of his death, and she prayed that the funds tendered into court by the plaintiff be turned over or transferred to the county court of Harris county, or to her as temporary administratrix, and for such other and further relief as she may show herself entitled to.
On March 9th, Mrs. Buvens and J. W. Renfro each filed a separate answer and cross petition, each alleging facts showing a right to recover from the insurance company the total amount due under said policies, and each praying for judgment against the insurance company for such amount, or in the alternative, that the clerk of the court be ordered to pay the entire proceeds from said policies to each of them respectively.
On March 23d, the motion of Mrs. Booth to dissolve the injunction, and her plea in abatement and exceptions came on to be heard, at which time the plaintiff introduced evidence in support of the material allegations in its bill. After hearing the evidence, the trial court immediately announced his rulings on the matters pre
The transcript and statement of facts were each filed with the clerk of this'court on April 25, 1940. The insurance company filed its motion to dismiss the appeal on the ground that the transcript was not filed in time. Thereafter various motions and replies were filed and on September 26th the whole matter was submitted to this court on oral arguments by counsel for the respective parties.
It would serve no useful purpose to set out the various contentions of the parties concerning the merits of the case, or to express our views with respect thereto, because we have reached the conclusion that a correct analysis of the record here presented requires us to hold, for the reasons hereinafter set forth, that this court is without jurisdiction to pass upon any issue in the case.
Article 4662 of the 1925 Revised Civil Statutes authorizes an appeal from an interlocutory order wherein a temporary injunction may be granted or refused, or when motion to dissolve has been granted or overruled, by filing the transcript in such case with the clerk of the appellate court not later than twenty days after the entry of record of such order or judgment. No excuse is shown for the failure to file the transcript in this cause within twenty days from April 1, 1940, as required by the statute, and no excuse for such failure could be shown, because the filing of the transcript within the time required by the statute is mandatory and jurisdictional. Dallas County Arcadia Fresh Water Supply Dist. No. 1 v. Pruitt, Tex.Civ.App., 245 S.W. 85; Stephenson v. Black Bros. Co., Tex.Civ.App., 265 S.W. 1119; Dodson v. Ingram, Tex.Civ.App., 270 S.W. 575; McFaddin v. Neches Canal Co., Tex.Civ.App., 278 S.W. 931; Harrell v. Tilley, Tex.Civ.App., 111 S.W.2d 736; Texas Farm Products Co. v. Thompson, Tex.Civ.App., 127 S.W.2d 492. Thgrefore, under the record presented, this court is without jurisdiction to pass upon the order or judgment complained of, in so far as the same overruled and refused the motion of the appellant to dissolve the temporary injunction, and unless such order is a final judgment so as to be appealable without regard to the provisions of Art. 4662, then this court has acquired no jurisdiction whatsoever over the litigation.
It is elementary that only one final judgment shall be rendered in any cause, except where it is otherwise specially provided by law. Such is the express provision of Article 2211 of the 1925 Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St. art. 2211. It has been repeatedly held that the test of whether a judgment is final so as to be appealable, is whether it disposes of the whole matter in controversy as to all of the parties. Whitaker v. Gee, 61 Tex. 217; Mignon v. Brinson, 74 Tex. 18, 11 S.W. 903; Havard v. Carter-Kelley Lbr. Co., Tex.Civ.App., 162 S.W. 922; Gulf, C. & S. F. R. Co. v. Atlantic Fruit Distributors, Tex.Civ.App., 184 S.W. 294; Wright v. Chandler, Tex.Civ.App., 173 S.W. 1173; Busby v. Schrank, Tex.Civ.App., 174 S.W. 295; Martin v. Daniel, Tex.Civ.App., 265 S.W. 409; Pecos & N. T. R. Co. v. Epps & Matsler, Tex.Civ.App., 117 S.W. 1012; Texas Cities Gas Co. et al. v. Dickens, Tex.Civ.App., 133 S.W.2d 810.
While the order attempted to be appealed from does have certain earmarks of a final judgment, in that it purports to approve the action of the insurance company in filing its bill of interpleader, and
We also call attention to the fact that no bond as required .by Article 2265 of the 1925 Revised Statutes is contained in the transcript, nor is there any affidavit in lieu thereof. The only notice of appeal is that contained in the order which recites that “The defendant, Mrs. Mary Elizabeth Booth, in open court duly excepted and gave notice of appeal”. Mrs. Booth was made a party defendant only in her individual capacity. While she recited in her pleadings that she was appearing individually and as temporary administratrix, we believe the record is insufficient to show that she has perfected any appeal in her fiduciary capacity as such temporary ad-'ministratrix, and certainly she has not done so in her individual capacity.
Having concluded that this court is without jurisdiction to pass upon any issue in the case, the appeal is dismissed.