No. 4729. | Tex. | Mar 23, 1927
The Court of Civil Appeals for the Tenth Judicial District certifies questions under statement as follows:
"This suit was originally instituted by Tom Davis et al. against Lee R. Davis et al., being the heirs of __________ Davis, deceased, for a portion of their father's estate, which consisted of a tract containing about 457 acres of land in McLennan County. A judgment was rendered in the partition suit, adjudicating the interests of the various heirs and decreeing that the property could not be divided in kind. The trial court ordered it sold by a trustee which he appointed, the sale to be subject to the court's confirmation. Thereafter the trustee, I. Mack Wood, reported to the court that he had sold the property to appellants, R. B. Dupree and J. T. Willis, for the sum of $17,000.00, and the court did on March 1, 1926, confirm said sale and order the trustee to execute a deed to said Dupree and Willis upon their payment to him of the $17,000.00 in cash. Thereafter, on March 6, at the same term of court, the trial court on its own motion set for hearing the matter of setting aside the order which it had made confirming said sale, and on March 19th the court heard the matter and entered the following order:
" 'It is therefore on this, the 19th day of March, 1926, ordered, adjudged and decreed by the court on his own motion, which motion being based upon verbal protest of the contestants herein without any pleadings being filed or evidence adduced, that said order of confirmation be and the same is hereby in all things set aside and held for naught.'
"To said order so entered Dupree and Willis in open court *407 duly excepted and gave notice of appeal to the Tenth Court of Civil Appeals, and the cause is now pending in this court.
"The transcript filed in this court shows that Dupree and Willis filed and had approved their appeal bond on March 26, 1926, and thereafter on March 31, 1926, during the same term of court, the transcript shows that the trustee of said estate reported that he had sold the property to Mattie Caldwell and others for $20,550, which sale was on said date confirmed by the trial court. As will appear from the dates, the sale to Mattie Caldwell and confirmation thereof was made by the trial court after Dupree and Willis had perfected their appeal by a cost bond to this court.
"The record shows that neither R. B. Dupree nor J. T. Willis, the sole appellants in this cause, filed any written pleadings in said courts; neither did they file any written objections or exceptions to the action of the trial court in setting aside the order confirming the sale to them; neither did they file any written motion asking the court to confirm the sale to them or to set aside his order that he had made setting aside his previous order of confirmation, and there are no pleadings showing appellants had tendered performance or offered to pay the purchase price.
"At a former day of this term this court held that it had no jurisdiction of the cause and dismissed the appeal because neither of appellants were parties in the trial court and could not therefore appeal. There is a motion pending for rehearing, and by reason of the insistence of the parties that we were in error in our former holding, and by reason of the importance of the question involved, and by reason of there being some doubt in our minds as to the correctness of our holding, we respectfully submit to the Honorable Supreme Court of this State for its determination upon the facts hereinbefore set out, the following questions:"
The questions certified are:
The order confirming the sale made full disposition of the matter under consideration by the court. It was an award "of the judicial consequence which the law attaches to the facts" on the report of sale made by the trustee and submitted to the court. Such order was a final judgment of the court, and from this order under the provisions of Art. 2249, Rev. Civ. Stats., 1925, an appeal might have been prosecuted. McBride v. United Irrigation Co.,
However, the order from which this appeal is sought to be prosecuted makes no disposition of the matter presented to the court by the report of sale. Its only effect is to set aside the former order of confirmation during the term of court at which it was made, and at a time when the court had complete control over its former order. It left the report of sale to Dupree and Willis undisposed of. The sale reported was not by this order vacated. The former order alone was affected by this order from which an appeal is here attempted. This order was interlocutory and not final. It left the matter of effecting a sale and disposition of the property involved still pending as it was prior to the order of confirmation. Being interlocutory, and there being no statutory provision allowing an appeal from an interlocutory order of this character, neither the parties litigant interested in the partition of the property, nor the purchasers, even had they by plea of intervention made themselves parties *409 to the litigation, could prosecute an appeal from the order vacating the former order of confirmation.
We recommend that the questions certified be answered in the negative.
The opinion of the Commission of Appeals, answering certified questions, is adopted and ordered certified to the Court of Civil Appeals.
C. M. Cureton, Chief Justice.