Carver Bros. v. Merrett

WILLSON, C. J. As shown in the opinion disposing of a former appeal of this cause (155 S. W. 633), the Merchants’ & Planters’ National Bank of Mt. Pleasant, one of the appellees, claiming that Carver Bros., the appellants, were indebted to it in the sum of $1,773.39 for money advanced by it to pay for cotton purchased by them, assigned its claim to Merrett, the other appellee, and guaranteed the payment thereof. The suit was by Merrett against Carver Bros, as the parties primarily liable for the payment of the debt, and against the bank as the guarantor of the payment thereof. In its answer the bank prayed for judgment over against Carver Bros, in the event Merrett recovered against it. The judgment from which this appeal was prosecuted'was in favor of Mer-rett against the bank for said sum of $1,-773.39, interest and costs, and in favor of the bank against Carver Bros, for the sum of $1,208.77, interest and costs. The issue made by the pleadings and testimony as to whether Carver Bros, were liable to Merrett or not was not determined; and, as the judgment therefore was not a final one, this court is without jurisdiction of the appeal. Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 840; Burch v. Burch, 28 S. W. 828; Otto v. *930 Halff, 32 S. W. 1052; Bank v. Vander Stucken, 37 S. W. 170; Burrows v. Cox, 38 S. W. 50. This fact was overlooked at the time we undertook to dispose of the appeal by the opinion filed on the 4th day of last March. That opinion will be withdrawn, and the appeal will be dismissed, because this court is without power to hear and determine it. Footnotes [1] ⅞=>$⅛ otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes