Lane v. Ellinger

32 Tex. 369 | Tex. | 1869

Lindsay, J.

It appears from the record that there is no final judgment in this case. "Without such final judgment, there can be no appeal; and, of course, no writ of error, which can give this court jurisdiction. There can be no appeal taken or writ of error sued out, to the refusal of the district judge to enter a final judgment in a cause. Why the final judgment was not entered by the court below upon the return of the verdiet into court, this court has no right' to inquire into by appeal or writ of error. The jurisdiction of this court is exclusively appellate, and can be exercised only in cases of final judgment, except where the Legislature may specially provide for its exercise upon interlocutory orders and judgments. Hone such, is so provided in cases like the present. (See 2 Tex., 529.) The reason why the final judgment was not entered upon the verdict at the subsequent term, upon the motion of the party in whose favor the verdict was, is not apparent. So long as the proceedings were in fieri, (in which condition they certainly were until final judgment), the power of the court, at the common law, to make the entry niMio fro tunc, was unquestionable. There may have been sufficient reasons, of which this comt is not informed, for the failure so to enter it. This court, however, can not take original jurisdiction of the case, simply because, fro forma, a writ of error has been issued by the district clerk. It is supposed that the cases of Johnson v. Smith and another, and of Burnett v. The State, 14 Tex. B., 455, will authorize this proceeding. It will be observed, however, in each of those cases final judgment was entered at a subsequent term of the court which conferred the jurisdiction. Hot so in this case. If a wrong has been committed, some other remedy must be invoked. The cause is dismissed.

Dismissed.