McMEANS, J. [1] There appears to have been no final judgment rendered in this case in the court below, and for that reason this appeal does not lie. The facts are substantially these; Lyon-Taylor Company sued John S. Johnson in the county court of Jefferson county, cause No. 1,514, and recovered a judgment against him. Johnson’s motion for a new trial having been overruled, he appealed, and the judgment against him was affirmed by the Court of Civil Appeals.
At a subsequent term of the county court Johnson brought this suit against Lyon-Taylor Company seeking to have the former judgment set aside, and upon the trial before the court judgment was rendered in favor of appellee against appellant annulling and setting aside the former judgment, and in favor of appellee for costs. There was no judgment rendered upon the merits.
The effect of this judgment was to annul the former judgment in cause No. 1,514 and put the parties where they were before cause No. 1,514 was tried, and leaves the case open for further adjudication upon the merits. It was therefore not a final judgment from which an appeal could be taken. Stewart v. Jones, 9 Tex. 469; Gross v. McClaren, 8 Tex. 341; Houston v. Starr, 12 Tex. 425; Taylor v. Fore, 42 Tex. 256. The appeal must therefore be dismissed.
In view of this decision, we are not at liberty to pass upon the sufficiency of the pleadings and evidence to sustain the action of the trial court in setting the former judgment aside and granting a new trial. Appeal dismissed.
Loading…