Opinion
No. 9126.
October 11, 1924.
Appeal from District Court, Dallas County; Louis Wilson, Judge.
Suit by J. W. Daniel and another against G. C. Martin, with cross-action by defendant against plaintiffs, and another. The third party's plea of res judicata and abatement was sustained, and defendant appeals. Appeal dismissed.
See, also, 164 S.W. 17.
Jones Jones, of Mineola, and John T. Spann, of Dallas, for appellant.
Seay, Seay, Malone Lipscomb of, of Dallas, for appellees.
Suit was filed October 3, 1911, in the district court of Dallas county by J. W. Daniel and T. J. Dudley v. G. C. Martin, appellant in this case, for the recovery of damages alleged to have resulted from the failure of appellant to perform a contract obligation he had theretofore entered into with the said Daniel and Dudley. Another purpose of the suit was the cancellation of a certain promissory note executed by the Hardwick-Abbott Manufacturing Company with the said Daniel and Dudley as sureties and in favor of appellant. This note is in the principal sum of $2,000, and was executed on August 3, 1911. A temporary writ of injunction was secured by the plaintiffs in their suit restraining appellant from negotiating or in any way disposing of this said note, and the United States Fidelity Guaranty Company, appellee, signed, as surety, the injunction bond.
Appellant filed his answer in said suit, alleging matters of defense against the suit for damages, and also against the allegations relied upon for the cancellation of the said note. Appellant also filed a cross-bill seeking a recovery on the note. Later, by an amended answer, appellant urged the same defensive matters and the same cross-action for recovery on the note, and, by additional allegations in his cross-action, sought to recover damages by reason of the injunction, alleging that at the time the injunction was issued the principal and sureties on the note were solvent and the note was negotiable and would have been negotiated by him for its face value but for the injunction that forbid such negotiation; that, since the issuance of the injunction, all the parties responsible for the payment of said note had become insolvent, and plaintiff had thereby suffered damages in the amount of said note. Appellant also sought in this cross-action a recovery against appellee in the amount of his alleged damages because of its being surety on the injunction bond.
A trial of this case was finally had in the district court on its merits, with the result that a Judgment was entered against appellant on every issue made by the pleadings and in favor of the plaintiffs in said suit, the Hardwick-Abbott Manufacturing Company and appellee.
Appellant perfected his appeal from this judgment to this court, but in said appeal assigned no error on the judgment in favor of appellee. This court reversed and remanded said cause, and overruled a contention made by appellee that the judgment should be affirmed as to it.
When the case was again called for trial in the district court of Dallas county appellee presented what it termed a plea of res judicata and abatement. This plea was heard previous to a trial of the case on its merits and sustained by the trial court. In fact, the case had not been tried on its merits in the district court at the time of this submission.
Without a disposition of the entire case, and with same, except as to appellee, remaining to be tried by the district court, appellant perfected his appeal to this court, and seeks a review of the ruling of the trial court on sustaining this said plea. The first question, therefore, presented to this court is whether such appeal will lie. If it will not, then this court is without jurisdiction to review such order of the trial court.
Article 1997 of the Revised Statutes reads:
"Only one final judgment shall be rendered in any cause, except where it is otherwise specially provided by law."
Article 2078 provides, in effect, that an appeal or writ of error may be taken to the Court of Civil Appeals only after a final judgment in the trial court. There are statutes authorizing appeals from interlocutory orders and Judgments of the trial courts in special cases, but the right of appeal in the instant case is not given by any of these statutes.
In the instant case a final judgment will be such judgment that disposes of all the parties and all the issues made by the pleadings and the evidence upon its trial When such judgment is rendered, then only is this court permitted to take cognizance of a duly perfected appeal. Masterson v. Williams (Tex.Sup.) 11 S.W. 531; Steinhardt v. Galveston Cottonseed Meal Co. (Tex.Civ.App.) 138 S.W. 825; Saenz v. Cohn (Tex.Civ.App.) 148 S.W. 367; Williams v. Bell Co., 3 Tex. Civ. App. 474, 116 S.W. 837; Culberson County v. Groves Lbr. Co. (Tex.Civ.App.) 191 S.W. 165; Kinney v. Tri-State Tel. Co. (Tex.Com.App.) 222 S.W. 227.
It therefore follows that, as this appeal is from a judgment which only disposes of one of the several parties to the case, and adjudicates only one of the many issues made by the pleadings, it is not from a final judgment and must be dismissed.
This order of dismissal is made without prejudice to appellant to perfect his appeal on the issues here raised after a final judgment in the case should he desire to do so.
Appeal dismissed.