Wichita Mill & Elevator Co. v. Burrus

HUFF, C. J. C. H. Burrus, appellee, instituted this suit against the Wichita Mill & Elevator Company, a partnership composed of Frank Kell and M. Lasker, and the City National Bank of Wichita Falls, to cancel a certain bond executed by R. G. Way & Co., as principals, and J. A. Jordan, R. W. Groves, and C. H. Burrus, as sureties, payable to the Wichita Mill & Elevator' Company, in the sum of $2,000.' It is alleged that one Morgan, the agent of the Wichita Mill & Elevator Company, procured appellee’s signature upon a fraudulent representation that E. R. Hayne, B. O. McWhirter, and J. W. Groves would sign the bond, which they did not do. etc. The case was filed in the district court of Lubbock county. The record shows that citation was issued to Galveston county to be served on M. Lasker, and that service was had on him November 7, 1912, and Frank Kell was served October 14, 1912, and the City National Bank was served on the same day. The district court for Lubbock county convened on the 11th day of November, 1912, and on the 13th day of November, 1912, judgment was taken by default against the Wichita Mill & Elevator Company, Frank Kell, and the City National Bank of Wichita Falls. The judgment in no way disposed of M. Lasker. As to the other parties the court canceled the bond as prayed for by appellee. Without disposing of M. Lasker, there was no' final judgment from which an appeal can be taken. Lilliensterne v. Lewis (Sup.) 12 S. W. 750; Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 837; Flow v. Railway Company, 147 S. W. 679; Hillsman v. Cline, 145 S. W. 726. There being no final judgment, this court is without jurisdiction, and the appeal is dismissed.