Wright v. Bott , 163 S.W. 360 ( 1914 )

On Motion for Rehearing. In the original opinion we stated that appellee desired us to consider his cross-assignments only in the event of reversal. Upon reading the brief of appellee, we find this to be incorrect. Appellee requested a reversal upon his cross-assignments.

The suit was brought against Ida Wright, I. M. Wright, and W. A. Laybourne for the specific performance of a contract made by I. M. Wright, and also, in the alternative, to recover $500, with interest, paid Wright as part of the purchase money for the land on the contract. The land was the separate property of Mrs. Wright, and she and her husband sold the land to W. A. Laybourne after the contract sued on was executed. A verdict and judgment was had and rendered on appellee's suit for the specific performance in favor of Ida Wright and W. A. Laybourne thereon and against appellee. A personal judgment was rendered against I. M. Wright in favor of appellee for the sum of $664; from this judgment, I. M. Wright alone appeals, and asks for a reversal of that judgment against himself. Ida Wright and W. A. Laybourne, in whose favor judgment against appellee on a suit for specific performance was rendered, are not before this court by appeal or otherwise. The appellee made a motion for new trial, and gave notice of appeal, but did not perfect his appeal by executing an appeal bond. The cross-assignment urged by appellee in this court attacked the judgment against him in favor of Ida Wright and W. A. Laybourne on his suit for specific performance, because it is asserted therein that the uncontroverted evidence showed that he was entitled to specific performance as against Ida Wright and W. A. Laybourne. The appeal, as presented by I. M. Wright, in no way affects the judgment obtained by Ida Wright and W. A. Laybourne against appellee's cause of action.

These parties not being before the court, a reversal of the judgment against I. M. Wright would not affect the judgment on specific performance in favor of Mrs. Wright and Laybourne.Ry.Co. v. Welch,100 Tex. 118-122, 94 S.W. 333; Lauchheimer v. Coop, 99 Tex. 386,89 S.W. 1061, 90 S.W. 1098. The appellee having failed to perfect his appeal by executing an appeal bond as to Ida Wright and W. A. Laybourne, we are without jurisdiction to consider appellee's cross-assignment assailing the judgment in their favor against him. Hoover v. Kearbey,25 Tex. Civ. App. 71, 60 S.W. 782; Munoz v. Brassel, 108 S.W. 417; Ry. Co. v. Cheek, 159 S.W. 427. The appellee's cross-assignments of error are therefore overruled. We also overrule appellee's motion for rehearing.

We find nothing in the motion of appellant for rehearing which induces us to change our views as expressed in the original opinion; his motion for rehearing is also overruled.

HENDRICKS, J., not sitting.