Scaling Oil Corp. v. Head , 1922 Tex. App. LEXIS 933 ( 1922 )

HODGES, J.

J. P. Head, one of the defendants in error, filed this suit against the Scaling Oil Corporation as the maker, and J. P. McFarland as the indorser, of a negotiable promissory note for the sum of $3,-365. The petition alleged that the note was payable to J. P. McFarland and had by him been indorsed and transferred before maturity to the plaintiff in the suit. The original petition was filed on November 16, 1920, and citation was issued and served upon the plaintiff in error, Scaling Oil Corporation, the following day. The latter answered within the time allowed by law. The case was placed on the jury docket and set for trial some time in the following January. The record shows that on January 24, 1.921, J. P. McFarland filed an answer replying to a cross-action on the part of the plaintiff in error. He interposed a general demurrer, special exceptions, and a general denial. The record further shows that on January 26, the plaintiff in error, Scaling Oil Corporation, filed what is styled its “second amended original answer,” in which it alleged, in substance, that the consideration for the note had failed,' that the plaintiff in the suit acquired the note with knowledge of that defect, and that he was suing mainly for the benefit of McFarland. In addition to this, the appellant alleged, in a general way, that the note sued on was given as a part of the purchase price of some mineral options in several different tracts" of land; that the abstract of title furnished by McFarland showed a defective title; that he had failed to correct those defects, and as to a part of the land he had no title and no authority to convey the mineral options assigned to the oil company. It asked, in the event judgment should be rendered in favor of the plaintiff in the suit, that defendant oil company have judgment over against its code-fendant, McFarland, for a similar amount.' It also prayed for the cancellation of the note on account of the failure of consideration. On the same day that this amended answer was filed, the court entered the following order, omitting the preamble:

"It is therefore ordered, adjudged and decreed that the cross-action of the defendant Scaling Oil Corporation against the defendant James P. McFarland be and the same is hereby dismissed, to which action and ruling of the court the said defendant Scaling Oil Corporation then and there in open court duly excepted. Then came on to be heard in the said cause the first application of the defendant Scaling Oil Corporation for a continuance in said cause; and the court, having heard and considered same, is of the opinion that said motion should be in all things overruled, and it is so* ordered,” etc.

In a trial before the court a judgment was rendered in favor of the plaintiff against both defendants for the full amount sued for.

The record contains no statement of facts, and only two assignments of error are presented by the Scaling Oil Corporation, the only party appealing. One of them complains of the order of the court overruling the application for a continuance. This application is not a statutory motion, and shows that the continuance was sought for the sole purpose of enabling the plaintiff in error to prepare its defense to the action, without indicating facts or conditions which show the absence of opportunity for siich preparation. The record .shows that the plaintiff in error was fully apprised, more than two months in advance of the trial, of the issues it would be called upon to meet, and there is nothing to indicate that this time was not amply sufficient to enable it to prepare its defenses. It further appears that the principal ground for the delay sought was to enable the plaintiff in error to prepare for its cross-action against McFarland. While the statute permits codefendants in suits of this character to litigate the order of their liability as between themselves, they cannot for that purpose delay the plaintiff’s suit. Revised Civil Statutes, art. 6331. There was no error, therefore, in refusing the application for a continuance.

The' other assignment complains of the order of the court sustaining McFarland’s general demurrer to the plaintiff in error’s cross-action. The order previously quoted, which is embraced in the transcript, shows upon its face that the court only struck out the cross-action wherein the plaintiff in error sought a recovery against McFarland In the fevent a judgment was rendered in favor of the plaintiff. Conceding that this was error, still it would not require a reversal of the judgment rendered in favor of the plaintiff on the note, which is apparently the only judgment appealed from. Clearly, the plaintiff in error has no right to delay the main suit by a reversal of that judgment in order that it may continue with its oode-fendant a contest in which the plaintiff had no concern. The judgment rendered in favor of the plaintiff below is the only judgment described or in any manner referred to in the supersedeas bond executed as the basis of this appeal. The bond must describe the judgment appealed from. Hammond v. Mays, 45 Tex. 486; First National Bank v. J. I. Campbell Co. (Tex. Civ. App.) 133 S. W. 311.

Involved in this suit are practically two controversies; one between the plaintiff in error and the plaintiff below, and the other between the plaintiff in error and its code-fendant McFarland. With the latter the plaintiff had no legal connection. While there may be only one final judgment rendered in any given case, there may he two distinct orders disposing of two distinct branches of the same case. If the plaintiff in error desired to appeal from the order dismissing its cross-action against McFarland, it should have described that order in its supersedeas bond and in that way presented it in this court for review. That order may he erroneous without in any manner affecting the judgment in favor of the plaintiff below. It is true that ruling on demurrers and other interlocutory orders may be reviewed in appeals from the final judgment which resulted from those orders. But the situation is different when a final disposition is made of an entirely collateral matter, which is not involved in the final judgment rendered in the main suit.

The judgment will he affirmed.