Steinhardt & Co. v. Galveston Cotton Seed Meal Co.

The judgment appealed from, and the only judgment appearing in the record, is as follows: "Steinhardt Co. v. Galveston Cotton Seed Meal Co. et al. March 7, 1910. On this day came on to be heard the general demurrer and special exceptions of the defendant, Adoue Lobit, contained in their second amended original petition, which said demurrer and special exceptions having been duly considered, by the court, are all and each sustained; and, the plaintiffs now declining to amend, it is therefore ordered, adjudged, and decreed by the court that this cause be, and the same is hereby, dismissed as against said defendants, B. Adoue and Joseph Lobit, composing the copartnership firm of Adoue Lobit, and that they go hence without day and have and recover of and from the said plaintiffs all costs by them in this behalf incurred. To which judgment, order, and decree the plaintiffs except and in open court give notice of appeal."

It is clear that this is not a final judgment, because it fails to dispose of all of the parties to the suit, and therefore no right of appeal therefrom is given by the statute, and this court has acquired no jurisdiction of the case by the appeal. Martin v. Crow, 28 Tex. 615; Rodrigues v. Trevino, 54 Tex. 201; Linn v. Arambould, 55 Tex. 618; Whitaker v. Gee, 61 Tex. 217; Bradford v. Taylor, 64 Tex. 169; Railway Co. v. Scott, 78 Tex. 361, 14 S.W. 791. The reason of this rule is obvious. Until the trial court has disposed of all the issues in the case, as such issues affect all of the parties to the suit, the jurisdiction of that court is not exhausted, and it has the right to change or set aside any intermediate judgment it may have rendered. As long as the jurisdiction of the trial court to set aside or modify its judgment remains, it is clear that any judgment rendered by it is not final.

In the case of Porter v. Railway Co., 121 S.W. 897, cited by appellee, it is held that where several parties are sued and the judgment appealed from does not dispose of all of the defendants, and there is nothing in the record to show that the defendants not mentioned in the judgment were served with citation, or that they answered in the case, it will be presumed that the suit was dismissed as to such defendants, and a judgment in favor of plaintiff against the remaining defendant will be regarded as a final judgment. We think this holding is directly contrary to the holding in the opinions of the Supreme Court in several of the cases above cited, but, if such is the rule, it is not applicable here, because the amended petition to which the demurrer was sustained by the judgment above set out recites that the "defendants had appeared and answered." Appellee also cites the case of Griffin v. Terry, 124 S.W. 115. In that case the petition complained of a "defunct" corporation and its stockholders, all of whom were parties to the judgment. The allegations of the petition being that the corporation "has become defunct and no longer exists," a judgment in favor of plaintiff against all of the stockholders, but which did not mention the "defunct" corporation, was held to be a final judgment. This would seem to be an entirely correct holding and not in conflict with the general rule announced in the authorities before cited.

Appellee has filed a motion asking this court to dismiss this suit as against the Galveston Cotton Seed Meal Company, and accompanying said motion there is an agreement signed by counsel for the appellant, which recites that plaintiff's suit was dismissed in the court below as against the Cotton Seed Meal Company, and asking this court to treat the judgment found in the record as a final judgment. Neither of these requests can be granted. This court being without jurisdiction upon the record presented cannot acquire jurisdiction by consent of the parties, and the judgment record could only be corrected by timely motion in the court below.

We are of opinion that the appeal should be dismissed, and it has been so ordered.