55 Tex. 611 | Tex. | 1881
The defendants having appealed, and assigning errors in the record for our consideration, we must first determine whether the supreme court has jurisdiction to entertain this appeal. If the judgment rendered by the district court is not a final judgment, as has been uniformly held, there does not lie an appeal from it.
The standard of the finality of a judgment was thus tersely stated by Justice Smith: “When the whole of
The results of adjudications upon the multiform phases which are presented under the application of the general rule as to the jurisdictional question under consideration, are shown by Mr. Freeman in his treatise on Judgments, from which liberal references may be made with advantage.
The definitions and tests which he deduces from the decided cases are not different, substantially, from those adopted by our supreme court. In Hanks v. Thompson, 5 Tex., 8, Ardrey, special judge, said: “A final judgment must mean, then, the awarding the judicial consequences which the law attaches to the facts, and determines the subject matter of controversy between the parties;” which definition was quoted with approval by Chief Justice Hemphill in West v. Bagley, 12 Tex., 34. The definition and test of a final judgment, given by Justice Smith, which has been already quoted, if it is more explicit, is not materially different in sense or meaning.
According to Mr. Freeman, “An interlocutory decree is one made ‘ pending the cause, and before a final hear
The application of these principles and rules to discriminate between these two classes of judgments or decrees is simpler in cases known as cases at law than to those which pertain to chancery jurisdiction and proceedings; and the same author remarks in this connection, supporting his propositions with high authority, “Owing to the number of orders or decrees necessarily entered in a suit in equity to furnish all the relief to which the complainant may be entitled, the courts have been frequently obliged to determine which is the final decree. So far as any general distinguishing test can be gathered from the numerous decisions, it is this: That if, after a decree has been entered, no further questions can come before the court, except' such as are necessary to be determined in carrying the decree into effect, the decree is final; otherwise it is interlocutory. But an order or decree, made for the purpose of carrying a judgment or decree already entered into effect, is not a final judgment or decree, and cannot be appealed from as such.”
■ Under these tests as to the finality of judgments and decrees, it will be seen that the cases decided on the question as to whether the judgment is final, or whether it is interlocutory, will naturally range themselves into classes in which the interlocutory character of the decree will result from a partial or incomplete disposition made as to all who are parties to the suit; or it may be from the incomplete determination of all the matters which are in controversy under the pleadings in the case; or it may result
The essential matters which are thus required to show a final judgment—such judgment as will be so regarded for the purpose of enabling the supremé court to take jurisdiction on appeal,—the judgment must in substance show intrinsically, and not inferentially, that the matters in the record had been determined in favor of one of the litigants, or the rights of the parties in litigation had been adjudicated. Therefore a judgment based on a verdict of a jury rendered for the defendant, “that he should recover his costs in that behalf expended,” was held in Scott v. Burton, 6 Tex., 322, to be interlocutory and not a final judgment. See also Warren v. Schuman, 5 Tex., 441.
The principle, or rule, too, which requires the interest of all the parties to be disposed of, in order to characterize the judgment as a final one, is applied in this state to the case where the rights of the intervenor in the suit are
Where a judgment which is final is rendered, and a new trial in toto is granted, of course the status of the judgment is that it is interlocutory; the judgment which has been rendered goes for nothing so far as concerns any availability of that judgment, and the matters originally at issue remain to be disposed of by another trial; and if the order setting aside the judgment and granting a new trial is complained of, the revision of the ruling can only be had after the case is finally determined.
Oases may occur where a judgment which is final when rendered, and which therefore fully determines the case, yet, being set aside by a grant of a new trial, still, after a determination of the suit on a subsequent trial, on an appeal taken on the last and the real final judgment, to revise the action of the court in setting aside the former . judgment, the last rendered judgment may be reversed, and the action of the court in setting aside the first judgment avoided by the appropriate reformation to be made by the appellate court. In Austin v. Townes, 10 Tex., 31, non-suit taken by plaintiff, which was set aside by the court; plaintiff permitted to amend his petition; the defendant, after the case was determined by a trial and final judgment rendered, urged as a ground of reversal the setting aside the non-suit. Justice Lipscomb, delivering
It is obvious, then, that it is the substance, and not the form or the shadow, which is regarded in determining whether a judgment is final; that a judgment final in form, but which is set aside, either rightly or erroneously, becomes an interlocutory order, which, although it maybe the subject of revision at some time or another, is not a final judgment and cannot be appealed from. Such orders, judgments and decrees belong, then, to that class which leaves still to be determined the merits of the controversy — the issues involved in the litigation.
The dissimilarity of the case now before us from the class just referred to is marked by the partial quality of the decree; first, in respect both to the extent to which the new trial is limited, confining it to but one branch of the case, and in express terms establishing as fixed and conclusive the judgment in its operation upon another branch of the case; and secondly, its partial quality in regard to its failure to determine in an absolute manner that branch of the case which decrees in favor of the plaintiffs, and as to which a new trial is refused.
This state of case involves the inquiry whether this
Our statute makes no distinction as to proceedings at law or in equity, nor does it establish any qualification of the rule that the judgment must be final in the one proceeding more than in the other, in order to give jurisdiction. The 25th section of the judiciary act of the United States provides “that a final judgment or decree in any suit in the highest courts of law or equity of a state, in which a decision of the suit can be had, may in certain cases therein specified be re-examined, and reversed or affirmed in the supreme court of the United States.” Freeman on Judgments, sec. 16. It is probable that, in other states besides our own, a like absence of discrimination is to be observed. In California the legislation on the subject seems to be embraced in their code; and judging from the language used by Freeman on Judgments, sec. 22, I infer that no distinction is made by the terms of the law as to final judgments, whether rendered in suits at law or in equity. Mr. Freeman remarks in that section: “ The courts have experienced considerable difficulty in determining what, under the code, is a final judgment, in proceedings in the nature of suits in equity. Some of the decisions do not seem exactly in harmony with others.” The author proceeds then to review and illustrate by his deductions of principles, the cases in which judgments have been held to be final, although not being or purporting to be full judgments and decrees which adjudicated all the rights of the parties; and he also noted several cases of a like kind, in which the judgments were considered interlocutory. It would be a tedious extension of this discussion to introduce here the result of this interesting and useful labor of that author;
Therefore the question is whether the record here can stand the test which is laid down as the correct one, to determine the finality of the judgment, as follows: “A decree can never be final until the party in whose favor it is can obtain some benefit therefrom without again setting the cause down for further hearing before the court, upon the equity reserved upon the coming in and confirmation of the report of the master, to whom a reference has been made [here the reference is to a court and jury on another trial], to ascertain facts which are absolutely necessary to be determined before the case can be finally disposed of by the court, or which the chancellor thinks proper to have ascertained before he grants any relief. But if the questions which can arise on the exceptions to the master’s report are such as are merely incidental to the carrying of the decree into effect, it is final.” Citing Johnson v. Everett, 9 Paige, 638; Freeman on Judgments, sec. 30.
A judgment is not divisible. Under the statute but one final judgment can be rendered; and where a judgment was rendered against several defendants sued on a promissory note, and a new trial to part of the defendants was granted, held, that the legal effect of such an order was to so far vacate the entire judgment as to render the issuance of execution thereon invalid; nor is such a judgment final, from which an appeal can be taken. Long v. Garnett, 45 Tex., 400; citing Martin v. Crow, 28 Tex., 614; Hulme v. Janes, 6 Tex., 242.
The suggestion in the brief of counsel for the appek lants, that the court “retained the defendants’ plea in re-convention,” not to ascertain whether he is entitled to reimbursement, because, as he says, that question is already passed upon by the court; but the plea, counsel urge, was retained to ascertain the amount to which the defendants are entitled. It is not necessary that we should define the character of that defense; we might say that it has not appeared to us in the light of a plea in
We conclude that this appeal must be dismissed for want of jurisdiction to entertain it.
Dismissed.
[Opinion rendered October 7, 1881.]