138 S.W. 825 | Tex. App. | 1911
The judgment appealed from, and the only judgment appearing in the record, is as follows: "Steinhardt Co. v. Galveston Cotton Seed Meal Co. et al. March 7, 1910. On this day came on to be heard the general demurrer and special exceptions of the defendant, Adoue Lobit, contained in their second amended original petition, which said demurrer and special exceptions having been duly considered, by the court, are all and each sustained; and, the plaintiffs now declining to amend, it is therefore ordered, adjudged, and decreed by the court that this cause be, and the same is hereby, dismissed as against said defendants, B. Adoue and Joseph Lobit, composing the copartnership firm of Adoue Lobit, and that they go hence without day and have and recover of and from the said plaintiffs all costs by them in this behalf incurred. To which judgment, order, and decree the plaintiffs except and in open court give notice of appeal."
It is clear that this is not a final judgment, because it fails to dispose of all of the parties to the suit, and therefore no right of appeal therefrom is given by the statute, and this court has acquired no jurisdiction of the case by the appeal. Martin v. Crow,
In the case of Porter v. Railway Co.,
Appellee has filed a motion asking this court to dismiss this suit as against the Galveston Cotton Seed Meal Company, and accompanying said motion there is an agreement signed by counsel for the appellant, which recites that plaintiff's suit was dismissed in the court below as against the Cotton Seed Meal Company, and asking this *826 court to treat the judgment found in the record as a final judgment. Neither of these requests can be granted. This court being without jurisdiction upon the record presented cannot acquire jurisdiction by consent of the parties, and the judgment record could only be corrected by timely motion in the court below.
We are of opinion that the appeal should be dismissed, and it has been so ordered. *1060