O'Brien v. Von Lienen

GRAHAM, C. J. This is an appeal attempted from a judgment for $1,098.30 rendered in the district court of Deaf Smith county on May 19, 1911, in favor of appel-lee, who was plaintiff below, and against appellant, who was defendant below. [725] The record shows that the case went to trial on pleadings substantially as follows: Appellee sought a recovery against appellant for $1,000, alleged to have been paid as a part of the purchase price for certain cattle purchased by appellee from appellant, and for $500 damages, alleged to have been sustained by appellee as a result of appellant having failed to furnish cattle as per agreement; appellee’s pleadings being in effect to cancel the contract for sale of the cattle on allegations of fraud committed by appellent as to the condition of the cattle at the time of the sale, appellee having declined to accept them when tendered by appellent. Appellant replied, denying the allegations of fraud, set up the contract, and pleaded a tender of performance on his part and a breach of the contract by appellee in failing and refusing to accept the cattle, and alleged that the $1,000 was paid as liquidated damages in the event that appellee breached the contract, and on that ground claimed right to retain the $1,000. In a separate paragraph of appellant’s pleading he alleged a decline in the market value of the cattle between the date on which appellee breached the contract, and that on which he was able to sell the cattle, aggregating $2,100, and sought to recover his damages in the event it be found that the $1,000 had not been paid to him as liquidated damages. In a supplemental petition appellee excepted to appellant’s cross-action or plea in intervention, which éxceptions were overruled by the court. The case was tried before a jury, and submitted to it by the court in his charge on the theory presented in appellee’s petition alone as to his right to recover the $1,000; the right to recover the $500 item not having been submitted, nor were the issues raised in appellant’s pleadings submitted to the jury. The judgment of the court on the verdict of the jury in no way disposed of any other issue in the case except to award the $1,000, with interest to appellee against appellant. [1] From the foregoing statement it will be seen that issues were raised by the pleadings that were not disposed of in any way by the judgment of the court, and, as we view the matter, the judgment rendered and attempted to be appealed from is therefore not a final judgment, and this court, having appellate jurisdiction only, is not warranted in entertaining the appeal in this case and disposing of the issues sought to be raised on their merit. Jacob Linn and Wife v. C. Arambould, 55 Tex. 611; T. & P. Ry. Co. v. Ft. Worth St. Ry. Co. et al., 75 Tex. 82, 12 S. W. 977; Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1061. Because the judgment attempted to be appealed from in this case is not a final one and therefore no jurisdiction exists in this court to dispose of the appeal upon its merits, the appeal will be dismissed, with the suggestion that the trial court proceed as was indicated by the Supreme Court in the case of Linn against Arambould, supra. The appeal will therefore be dismissed, and it is so ordered.