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Warren v. Walter , 1966 Tex. App. LEXIS 2346 ( 1966 )


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  • 409 S.W.2d 887 (1966)

    Jackie WARREN et al., Appellants,
    v.
    Mrs. Mary Ann WALTER et vir, Appellees.

    No. 221.

    Court of Civil Appeals of Texas, Tyler.

    December 15, 1966.
    Rehearing Denied January 5, 1967.

    James N. Phenix, Pheniz, Keeling & Wilder, Henderson, for appellants.

    Jack N. Price, Longview, for appellees.

    MOORE, Justice.

    This is an appeal from the judgment of the trial court granting a bill of review, setting aside and holding for naught a default judgment previously rendered. The judgment appealed from recites that the court granted a new trial on the merits, but the judgment affirmatively shows that there has never been a final determination of the case on the merits. This judgment is interlocutory and not appealable. In their petition for bill of review, plaintiffs not only alleged reasons relied upon for re-opening the judgment by default, but pleaded the case so that the court could have determined the issues presented in the original action and this should have been done. Two trials, one to vacate the judgment by default and another on the merits of the original action, are not permitted, but every issue raised on both phases of the case must be disposed of on one trial, and the judgment rendered will be an effective substitute for the judgment vacated. Palmer v. D. O. K. K. Benevolent & Insurance Association, 160 Tex. 513, 334 S.W.2d 149; Jones, d/b/a Galveston Lumber Company v. Steele, (Tex.Civ.App.) 360 S.W.2d 592; Clay Lumber Co. v. Patterson, (Tex. Civ.App.) 28 S.W.2d 825; Wise v. Lewis, (Tex.Com.App.) 23 S.W.2d 299.

    Although our jurisdiction has not been challenged by a point of error, fundamental error is apparent on the face of the record. McCauley v. Consolidated Under-writers, 157 Tex. 475, 304 S.W.2d 265.

    *888 Since the order entered by the trial court in this proceeding is not a final judgment, this court has no power to review the same. The status of the case is that it stands for trial on its merits in the court below.

    For the reasons stated, it follows that the appeal in this cause must be dismissed.