Sydec v. Duran , 2 Posey 304 ( 1885 )

Opihioh.— The judgment rendered by the court was a final judgment, to the effect “ that the plaintiffs take nothing by their suit, and that the defendants go hence without day,” and it proceeded to dispose of the costs of the suit.

This left nothing further to be adjudicated; and whether the judgment was erroneous or not in any particular, it was nevertheless a final judgment. It was a complete disposition as to all the parties to the suit and as to all the matters in controversy under the pleadings. Linn v. Arambould, 55 Tex., 617. That part of the judgment which adjudicates the recovery of costs by certain of the defendants against the plaintiffs specifies and includes all of them except James Power. Whether this were an unintentional omission of his name or whether it was purposely omitted does not matter. If the court adjudicated as to who should recover and from whom the cost should be recovered, whether erroneously or not, the judgment was rendered in favor of all the defendants; and if any objection existed, it would simply be a subject of complaint by the party injured complaining of the judgment.

The plaintiffs prosecuted this writ of error from the judgment, and they take no notice of James Powers in their citation of writ of error, nor is the writ of error bond made payable to him as one of the defendants.

That they have thus failed to serve him and make the bond payable to him along with his co-defendants is made the ground of the motion to dismiss this writ of error, which must prevail. Greenwade v. Smith, 56 Tex., 195; Smith v. Parks, 55 Tex., 83; Thompson v. Price, 55 Tex., 427; Harney v. Cummings, 62 Tex., 187.

Writ oe error dismissed.