150 S.W.2d 377 | Tex. | 1941
Plaintiff sued defendant for the balance of the purchase price of a refrigerator and to foreclose a lien thereon. The defendant filed a plea in abatement to plaintiff's suit, on the ground that plaintiff was a foreign corporation without a permit to do business in Texas. The defendant also filed a cross-action to cancel plaintiff's debt and lien, and for judgment for the sum of $469.62, representing that part of the purchase price of the refrigerator previously paid by him, and the sum of $59.78 damages for merchandise lost for lack of proper refrigeration. The trial judge announced that he would hear the plea in abatement and the merits of the case together. After the jury had returned its verdict the court sustained the plea in abatement and dismissed plaintiff's suit. The judgment in no wise referred to or attempted to dispose of defendant's cross-action. Plaintiff appealed.
1-3 It is a well settled rule in Texas, with certain statutory exceptions not here involved, that an appeal will lie only from a final judgment, and that a judgment in order to be final must dispose of all parties and of all issues involved in the suit. 3 Tex. Jur. 114. It is not essential that the judgment in express *298
terms specifically dispose of each issue. That it does dispose of a particular issue may be inferred from other provisions thereof, provided such an inference follows as a necessary implication. Trammell v. Rosen,
4-5 The appeal in this case was from an order entered on July 26, 1939. We find among the papers in the case a supplemental transcript in which it is recited that on November 6, 1939, at a subsequent term of court, the court entered a nunc pro tunc order in which the previous judgment of date July 26, 1939, was withdrawn and a new judgment entered dismissing plaintiff's suit and denying defendant any recovery on his cross-action. However, the appeal in this case was not from the nunc pro tunc order of date November 6, 1939. The appeal bond was filed on August 17, 1939, long before the entry of the nunc pro *299 tunc order, and recites that the appeal was taken from the judgment of date July 26, 1939.
It is well settled in this State that when a judgment is pronounced at one term and not entered of record at that term but is entered nunc pro tunc at the succeeding term, the right of appeal from such nunc pro tunc order dates from the entry thereof. Peurifoy v. Wiebusch,
Since the judgment sought to be appealed from did not dispose of the defendant's cross-action, and was therefore not a final judgment, the Court of Civil Appeals acquired no jurisdiction of the appeal.
The judgment of the Court of Civil Appeals is reversed, and the appeal is dismissed.
Opinion delivered April 9, 1941.