Foster v. Ross and Ross, Executors ( 1903 )

We have carefully considered appellant's motion for rehearing but have found no reason to alter our conclusion in so far as the judgment in appellant's suit against Burnett is concerned. We have concluded, however, that we committed error in considering for any purpose appellees' cross-assignment complaining of the action of the trial court in the disposition of the suit of Burnett on the warranty. The question of practice presented was not called to our attention by appellee and was overlooked by us. Appellee did oppose the consideration of the cross-assignments, but only on the ground that they involved questions of fact and appellees had not assailed the verdict by a motion for new trial. This objection was not sound as to one of the cross-assignments, as the question presented by that one was of law.

It is now plain that the judgment in the consolidated cases was severable; indeed two distinct judgments may properly be said to have been rendered. From the judgment in the warranty case appellants did not appeal and appellees have not appealed. It is not therefore before us in any form for revision. In such cases there must be an appeal. Woeltz v. Woeltz, 93 Tex. 548; Anderson v. Silliman, 92 Tex. 560.

Our judgment reversing that portion of the judgment of the trial court is therefore set aside and the judgment complained of on this appeal is affirmed as originally ordered.

Ordered accordingly.

Writ of error refused.