Kosse Nat. Bank v. Derden

GALLAGHER, C. J. This suit was instituted by J.” H. Gibson against appellee W. E. Derden to recover on two promissory notes executed by appellee to B. C. Hadley, and by him assigned and transferred to said Gibson. He alleged that each of said notes was for the sum of $625.58, and recited that the same was given in part payment for a certain tract of land situated in Limestone county, and consisting of 400 acres, and that the vendor’s lien was retained to secure the same. Said Gibson prayed for judgment for his debt, with interest and attorney’s fees as stipulated in said notes, and for general relief. Appellee filed an answer in said cause, consisting of a general demurrer and a general denial. He also filed a pleading in the nature of a cross-action against the Kosse National Bank, appellant herein, and against H. J. Waller, T. W. Whailey, and W. L. Forbes as individuals. He alleged therein that appellant was the successor of the First National Bank of Kosse, Tex.; that it had taken over the assets and assumed all the liabilities thereof; that he had theretofore sold and conveyed said tract of land consisting of 400 acres as aforesaid to said H. J. Waller, who was then and there acting as agent of said First National Bank; that said bank was the real purchaser and said deed was made to said Waller at its request; that the terms of said sale were negotiated and agreed upon between him and Whailey and Forbes, officers and agents of said bank. He. further alleged that in all said negotiations he told said parties that his purpose in- disposing of said land was to relieve himself of the burden of the indebtedness against the same; that they both knew [296] and understood that such was his purpose and that such relief was a substantial part of the consideration for such trade; that they prepared the deed by which said land was conveyed by him to said Waller; that said deed at the time it was prepared and at the time it was executed’by him recited that all the indebtedness referred to therein was assumed by the purchaser; that, subsequent to the execution and delivery of said deed by, him and prior to the time the same was recorded, it was, without his consent, fraudulently altered and changed by the agents of said bank to read, in substance, that said conveyance was “subject to” said indebtedness, instead of reciting that the grantee assumed the same, as agreed between him and the officers and agents of said bank. He further alleged that the indebtedness sued upon herein was a part of the indebtedness which said bank had agreed to assume. He prayed in event of a recovery against him by said Gibson, that he have judgment over and against all the defendants in said cross-action for the amount so recovered, and that the deed of record from him to said Waller be reformed so as to conform to the real agreement and to show affirmatively that the grantee assumed all said indebtedness. All the defendants in said cross-action appeared and answered in the cause, denied liability, and set up special defenses. Appellant in that connection alleged affirmatively that said Waller had conveyed the land to the First National Bank by a deed containing substantially the same recitals as the deed from Der-den to said Waller. The case was submitted on special issues, in response to which the jury found, in substance, that the original agreement between appellee and said Forbes, acting for said First National Bank, was that said bank should assume the indebtedness against said tract of land and that appellee’s deed conveying the same should contain such provision, and that the deed he executed and delivered did contain such provision at the time he executed and delivered the same. The court entered judgment on the verdict in favor of said Gibson against appellee for the sum of $1,273.92, and in favor of appellee against appellant for a like sum, and, further, that the deeds of record conveying said land from appellee to said Waller and from Waller to said First National Bank be changed and reformed to read and state that the grantee in each deed, respectively, assumed the indebtedness against said tract of land. No mention of said Waller, Whailey, or Forbes, defendants in said cross-action, is made in such judgment, and there is nothing in the record before us showing any disposition of said cross-action between appellee- and them. Our Revised Statutes provide, in substance, that an appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases. R. S. art. 2249. With certain statutory exceptions, it is well settled by a long line of decisions that no appeal can be prosecuted until a final judgment has been rendered. Wooton v. Jones (Tex. Civ. App.) 189 S. W. 350, 351, par. 1. Our Supreme Court, in Linn v. Arambould, 55 Tex. 611, 616, et seq., defined a final judgment to be one in which the whole matter in controversy is disposed of as to all parties. See, also, Simpson v. Bennett, 42 Tex. 241; Martin v. Crow, 28 Tex. 614, 615, et seq. The judgment rendered by the court in this case, for failure to dispose of the cross-defendants Waller, Whailey, and Forbes, lacks finality, and this court is therefore without jurisdiction of this appeal. Wootters v. Kauffman, 67 Tex. 488, 496, et seq., 3 S. W. 465; Whitaker v. Gee, 61 Tex. 217, 218; Oilmen's Reciprocal Ass’n v. Coe (Tex. Civ. App.) 6 S.W. (2d) 1046, 1047, par. 4, and authorities there cited; Community Natural Gas Co. v. Henley (Tex. Civ. App.) 11 S.W. (2d) 206, and authorities there cited; Erwin v. Griffin (Tex. Civ. App.) 24 S.W.(2d) 78; Foster v. Little Motor Kar Co. (Tex. Civ. App.) 290 S. W. 228, 230, par. 3, and authorities there ’ cited. When it appears from the record submitted that an appellate court is without jurisdiction, it is its duty to dismiss the appeal on its own motion. Holek & Co. v. Varona, 63 Tex. 65, 66; Community Natural Gas Co. v. Henley, supra, and authorities there cited; Meredith v. Bell (Tex. Civ. App.) 7 S.W.(2d) 605, 606, par. 1; St. Louis S. W. Ry. Co. v. Elliston (Tex. Civ. App.) 128 S. W. 675; Converse v. Trapp (Tex. Civ. App.) 29 S. W. 415. The appeal in this ease is therefore dismissed.