Opinion
No. 4276.
December 23, 1932. Rehearing Denied January 5, 1933.
Error from District Court, Gregg County; Will C. Hurst, Judge.
Suit by Celia Cobb and others against Raymond Bumpus. To review the judgment rendered, the defendant brings error.
Writ of error dismissed.
The plaintiffs in the trial court were the widow and children of William Cobb, deceased. As such they claimed to be owners in fee of 33 acres of land in Gregg county. The children complained that plaintiff in error Bumpus (defendant below) had through fraud and deceit and misrepresentation secured their signatures to an oil and gas lease for which they had received no consideration. Celia, the mother, pleaded non est factum. All of them prayed that the alleged oil and gas lease be canceled and removed as a cloud on their title.
The original pleadings do not appear in the transcript, but the amended pleadings, upon which the case went to trial, list the following plaintiffs: Celia Cobb, Levi Cobb, Pearl Cobb Long, George Cobb, Arthur Cobb, Calvin Cobb, George Mobley, surviving husband of Hattie Cobb, deceased, Eugene Cobb, and Bertha Cobb, surviving widow of Will Cobb, deceased.
Defendant Bumpus was by the trial court awarded judgment against Levi Cobb, Emma Cobb Wilson (not listed in the pleadings as party to the cause), Pearl Cobb Long, George Cobb, Calvin Cobb, and George Mobley. Celia Cobb recovered judgment against Bumpus for an undivided 40/72 interest. Plaintiff in error Bumpus (defendant below) complains here of the judgment against him in favor of Celia Cobb, and assigns error.
Wynne Wynne, of Longview, and Geo. I. McGee and Tom F. Head, both of Kilgore, for plaintiff in error.
E. M. Bramlette, of Longview, and Ross M. Scott, and House Wilson, all of Dallas (W. B. Handley and C.J. Shaeffer, both of Dallas, on the brief), for defendants in error.
We find that this court is without jurisdiction to entertain this writ of error, and to consider the errors assigned. No disposition was made in the judgment, or otherwise, of the claims of Eugene Cobb and Bertha Cobb, two of the plaintiffs below. Eugene Cobb was not mentioned in the court's charge, the verdict of the jury, or the judgment of the court, and there is nothing in the said judgment from which it could be construed as having disposed of or adjudicated the claims of Eugene Cobb and Bertha Cobb to an interest in the subject-matter of the law suit. A judgment which does not dispose of the whole matter in controversy as to all litigating parties is not a final judgment. Havard v. Carter Kelley Lbr. Co. (Tex.Civ.App.) 162 S.W. 922; Busby v. Schrank (Tex.Civ.App.) 174 S.W. 295. These litigants were not disposed of in the judgment by implication, as in Southern Pacific Co. v. Ulmer (Tex.Com.App.) 286 S.W. 193. While the plaintiffs claimed as cotenants, the alleged interest of each was separate and distinct, and a judgment for or against some of them did not imply an adjudication of the claims of the others. In fact, the judgment was in favor of one plaintiff and against some others; they being expressly named therein, and under these circumstances the failure to name Eugene and Bertha precludes any implication that the case was adjudicated as to them.
The court instructed a verdict against Bertha Cobb, plaintiff, and such verdict was returned; but no disposition was made in express terms or by implication of the claims or rights of this party litigant. It thus appears that the judgment is not only at variance with the jury verdict in this respect, but it is made to affirmatively appear that Bertha Cobb had not been dismissed, and that no adjudication was had as to her. Articles 2211 and 2209, R.S. 1925; Turner-Cummings Hardwood Co. v. Lumber Co. (Tex.Civ.App.) 201 S.W. 431; Isabella Walker v. L. C. Taylor, 56 S.W.2d 251, opinion by Justice Levy of this court, Dec. 1, 1932, and cases therein cited.
We have concluded that the judgment complained of is not a final judgment, and the present writ of error is therefore dismissed for want of jurisdiction, and costs are taxed against plaintiff in error.