McCarty v. Gray

KEY, O. J. R. B. McCarty brought this suit against D. F. Gray and Barney Tread-way. The plaintiff alleged in his petition that the defendant Gray executed and delivered to him certain promissory notes, secured by a chattel mortgage executed by Gray upon two mules. It was also alleged in his petition that the defendant Treadway was in possession of the mules, asserting some sort of title thereto. The defendant Treadway filed an answer, which included a general denial and a special plea alleging that he had bought the mules from his co-defendant, Gray, and that before he purchased them the plaintiff agreed to release them from his mortgage. The defendant Gray filed no answer. There was a trial, which resulted in a verdict and judgment in favor of the defendant Treadway as to the controversy between him and the plaintiff; but the judgment does not even remotely refer to the defendant Gray, and makes no disposition of the case as between the plaintiff and him. The statute fixing the jurisdiction of this court authorizes appeals from final judgments only, and it is well settled that, when a judgment does not dispose of all the parties and the entire subject-matter of the litigation, it is not a final judgment, and that when such is the condition of the record the appeal should be dismissed. Martin v. Crow, 28 Tex. 614; Simpson v. Bennett, 42 Tex. 241; Linn v. Arambould, 55 Tex. 611; Mignon v. Brinson, 74 Tex. 18, 11 S. W. 903; Mills v. Paul, 1 Tex. Civ. App. 419, 23 S. W. 189; Davis v. Martin, 15 Tex. Civ. App. 62, 53 S. W. 599. Hence we hold that this court has no jurisdiction of this appeal, and that the same must be dismissed. If the parties or the court below are in any doubt as to the status of the ease, and what should be done with it, they are referred to the opinion of the Supreme Court in Linn v. Arambould, supra. Appeal dismissed.