Shaw v. Cunningham , 1931 Tex. App. LEXIS 1498 ( 1931 )

HICKMAN, C. J.

This suit was instituted by defendant in error against plaintiff in error for the purpose of setting aside and annulling a judgment rendered in the court below on the 2Sth day of May, 1925. The original judgment sought to be set aside was one in favor of Chas. O. Austin, commissioner of banking, against Geo. W. Cunningham and Robert Cunningham, as executors of the estate of L. P. Cunningham, deceased. The defendant, Mary L. Cunningham, is the surviving widow of L. P. Cunningham, deceased, and was by the petition of Chas. O. Austin made a party to the original suit. It is unnecessary to set out here the grounds of attack upon the original judgment. This suit resulted in a judgment in favor of defendant in error against plaintiff in error, setting aside, vacating, and annulling the judgment in the original suit. The issues of liability involved in the original suit were not disposed of herein, but were left suspended without adjudication.

It is well settled that an appeal will not lie from a judgment merely vacating and setting aside an original judgment without disposing of the issues involved in the original suit. Such a judgment is interlocutory and therefore not appealable. We had occasion to consider this question and collate the authorities thereon in the case of Clay Lumber Co. v. Patterson (Tex. Civ. App.) 28 S.W.(2d) 825, and on the authority of that case and the cases there cited it is our conclusion that no final judgment was rendered in the court below and that this appeal should accordingly be dismissed.

We think it not improper to state that, according to the record before us, necessary parties to the relief sought and obtained were omitted. This suggestion is made in view of the possibility of further proceedings in the case.

Our order is that the appeal be dismissed.