179 S.W. 1127 | Tex. App. | 1915
Lead Opinion
1. The appeal must be dismissed for want of finality in the judgment. The rule is that appeals lie only from final judgments. The only exception is in some instances specially provided by law, granting the right to appeal from certain interlocutory orders and judgments. See cases cited, 1 Michie, Ency.Dig. 394, 395. A judgment is not final so as to authorize appeal therefrom unless disposition has been made of all of the parties; all issues raised determined, and the case disposed of as completely as the court had power to do. See cases cited, 8 Michie, Ency.Dig., pp. 156 and 161.
A final judgment is the awarding of the judicial consequences which the law attaches to the facts. It is final only when the decision or sentence of the law is pronounced by the court upon the matter contained in the record. Eastham v. Sallis,
"It is not enough to make a final judgment that we can see that the court ought to have rendered one. What the court did must have amounted to a final determination of the rights of the parties resulting from the ruling made." Land Loan Company v. Winter,
It is argued by appellees that this case is analogous to those authorities which hold a judgment final which disposes of an issue by necessary implication only; for example, a cross-action not expressly mentioned and adjudicated. Trammell v. Rosen, supra, and cases there cited; also Davies v. Thomson,
Appellees also request, if it be determined the judgment is not final, that this court reform the same and make it so. This cannot be done. The defect affects the jurisdiction of this court, and we must dismiss the appeal.
2. In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodside's disclaimer that the Finnigan-Brown Company take nothing against him. It may be said, however, in view of further proceedings in the case, that it is best and proper to do so. Gullett v. O'Connor,
In Gullett v. O'Connor, supra, it was held under the facts there presented, that it would be presumed the cause had been dismissed as to a defendant who had disclaimed and as to whom no disposition was made in the judgment. But upon the facts reflected by the record here it may well be doubted whether any such presumption could be indulged. Mignon v. Brinson, supra.
Dismissed.
"In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodside's disclaimer that the Finnigan-Brown Company take nothing against him."
In this sentence the word "recover" should have been used for "take nothing." It is accordingly now so corrected, and with this correction the motion for rehearing is overruled.
Lead Opinion
(after stating the facts as above).
A final judgment is the awarding of the judicial consequences which the law attaches to the facts. It is final' only when the decision or sentence of the law is pronounced by the court upon the matter contained in the record. Eastham v. Sallis, 60 Tex. 576. No complete disposition is made, directly or by implication, of the issue raised by the Finnigan-Brown Company’s suit for the hides and skins. The judgment in favor of Martinez and Garcia only disposes of the proceeds of those the jury found belonged to them. It does not adjudge to the Finnigan-Brown Company the hides the jury found belonged to it, nor the proceeds thereof; neither does it adjudge the company not entitled thereto. Unless this be done, directly or by necessary implication, the judgment cannot be final. The hides having been sold and the proceeds thereof being in the hands of the Finnigan-Brown Company, it followed upon the jury’s verdict that it was entitled to judgment for its share of such proceeds. But:
“It is not enough to make a final judgment that we can see that the court ought to have rendered one. What the court did must have amounted to a final determination of the rights of the parties resulting from the ruling made.” Land & Loan Company v. Winter, 93 Tex. 560, 57 S. W. 39; Trammell v. Rosen (Sup.) 157 S. W. 1161.
Appellees also request, if it be determined the judgment is not final, that this court reform the same and make it so. This cannot be done. The defect affects the jurisdiction of this court, and we must dismiss the appeal.
2. In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodside’s disclaimer that the Finnigan-Brown Company take nothing against him. It may be said, however, in view of further proceedings in the case, that it is best and proper to do so. Gullett v. O’Connor, 54 Tex. 408; Mignon v. Brinson, 74 Tex. 18, 11 S. W. 903.
In Gullett v. O’Connor, supra, it was held under the facts there presented, that it would be presumed the cause had been dismissed as to a defendant who had disclaimed and as to whom no disposition was made in the judgment. But upon the facts reflected by the record here it may well be doubted whether any such presumption could be indulged. Mignon v. Brinson, supra.
Dismissed.
(g=»Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Rehearing
On Rehearing.
In the original opinion it was said:
“In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodsida’s disclaimer that the Finnigan-Brown Company take nothing against him.”
In this sentence the word “recover” should have been used for “take nothing.” It is accordingly now so corrected, and with this correction the motion for rehearing is overruled.
