Cooksey v. Jordan
| Decision Date | 31 January 1912 |
| Citation | 143 S.W. 141 |
| Parties | COOKSEY v. JORDAN et al. |
| Court | Texas Supreme Court |
Action by J. B. Cooksey against J. G. Jordan and others. From the judgment, plaintiff appealed to the Court of Civil Appeals, which affirmed the judgment (140 S. W. 1175), and plaintiff brings error. Reversed, and judgment rendered.
R. S. Neblett and R. R. Owen, for plaintiff in error. Treadwell & Tarver, for defendants in error.
A writ of error was prosecuted to this court from the judgment of the Court of Civil Appeals for the Third Supreme Judicial District. The opinion of that court, which will be found reported in 140 S. W. 1175, in our judgment correctly decides and disposes of the case except in the respect hereinafter noted.
The judgment of the trial court decreed in favor of Huggins and against plaintiff in error a recovery of the sum of $150 as a reasonable fee for his attorney in the suit in the event the case was not appealed, and provided for the sum of $250 "in the event of an appeal." The judgment of the trial court recites that same is "alternative, final, and not conditional," and, further, that "the clerk of this court is directed, on the request of the said Huggins, to issue execution on this judgment for one hundred and fifty ($150.00) dollars, interest, and costs; if appeal is perfected on this judgment within the manner and time prescribed by law, then said writ of execution shall be for the sum of two hundred and fifty dollars, interest, and costs." It is urged in the application submitted to us that this judgment is void, and is fundamentally wrong, in that it imposes a penalty on Cooksey for appealing. The appellee has filed an answer or reply to the petition for writ of error, and we are therefore authorized, under the act of the last Legislature, to finally pass on the matter, if in our judgment it seems best so to do. We think, on full reflection, that the interests of both parties would be subserved by a judgment finally concluding and ending the litigation.
That there can be but one final judgment in any case is elementary. That such judgment may contain provisions for its execution or satisfaction is not to be doubted or denied. The judgment rendered in this case, however, does not fall within this rule. Here there is in effect a judgment, unconditional and in no manner contingent, for $150, and containing, in substance, a provision that, in the...
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