Davis v. McCray Refrigerator Sales Corporation

• Decision Date: 09 April 1941
• Docket Number: No. 7801.,7801.
• Citation: 150 S.W.2d 377
• Parties: DAVIS v. McCRAY REFRIGERATOR SALES CORPORATION.
• Court: Texas Supreme Court

Page 377

150 S.W.2d 377

DAVIS v. McCRAY REFRIGERATOR SALES CORPORATION.

No. 7801.

Supreme Court of Texas.

April 9, 1941.

Motion for Rehearing Overruled May 7, 1941.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by the McCray Refrigerator Sales Corporation against M. V. Davis to recover unpaid principal and interest due under contract to purchase refrigerator, and to foreclose lien, wherein defendant filed a cross-action. Judgment for defendant was reversed by the Court of Civil Appeals, 140 S.W.2d 477, and defendant brings error.

Judgment of the Court of Civil Appeals reversed and appeal dismissed.

Graves & Collins, of Fort Worth, for plaintiff in error.

Greathouse & Swanger, of Fort Worth, for defendant in error.

ALEXANDER, Chief Justice.

Plaintiff sued defendant for the balance of the purchase price of a refrigerator and to foreclose a lien thereon. The defendant filed a plea in abatement to plaintiff's suit, on the ground that plaintiff was a foreign corporation without a permit to do business in Texas. The defendant also filed a cross-action to cancel plaintiff's debt and lien, and for judgment for the sum of $469.62, representing that part of the purchase price of the refrigerator previously paid by him, and the sum of $59.78 damages for merchandise lost for lack of proper refrigeration. The trial judge announced that he would hear the plea in abatement and the merits of the case together. After the jury had returned its verdict the court sustained the plea in abatement and dismissed plaintiff's suit. The judgment in no wise referred to or attempted to dispose of defendant's cross-action. Plaintiff appealed.

It is a well-settled rule in Texas, with certain statutory exceptions not here involved, that an appeal will lie only from a final judgment, and that a judgment in order to be final must dispose of all parties and of all issues involved in the suit. 3 Tex.Jur. 114. It is not essential that the judgment in express terms specifically dispose of each issue. That it does dispose of a particular issue may be inferred from other provisions thereof, provided such an inference follows as a necessary implication. Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161. The judgment in this case does not expressly dispose of the defendant's cross-action, nor does it do so by necessary implication. The mere dismissal of plaintiff's suit did not have the effect of dismissing or otherwise disposing of the defendant's cross-action. Barrier v. Lowery, 118 Tex. 227, 11 S.W.2d 298, 13 S.W.2d 688, par. 1; Texas & P. R. Co. v. Fort Worth Street Ry. Co., 75 Tex. 82, 12 S.W. 977; Jasper v. Mays Manufacturing Co., Tex.Civ.App., 139 S.W.2d 895; Jungbecker v. Huber, 101 Tex. 148, 105 S.W. 487; 15 Tex.Jur. 291. This is so because if the court had intended to merely sustain the plea in abatement and dismiss plaintiff's suit, and had intended to retain the defendant's cross-action for further consideration, it would have entered the very judgment that was entered in this case. The mere failure of the judgment to refer to defendant's cross-action was not sufficient in itself to raise an inference that it was thereby intended to dispose of the cross-action. In other words, where the court dismisses plaintiff's suit, and does not refer to or mention the defendant's cross-action, the judgment does not dispose of the cross-action expressly or by implication, and is therefore not such a final judgment as will authorize an appeal therefrom. 3 Tex.Jur., p. 121, sec. 58; 4 C.J.S., Appeal and Error, p. 190, § 95; Southern Trading Co. of Texas v. Feldman, Tex. Com.App., 259 S.W. 566, par. 2; American Road-Mach. Co. v. City of Crockett, Tex.Civ.App., 49 S.W. 251; Anderson, Evans & Evans v. Smith, Tex.Civ.App., 167 S.W. 765; Minnock v. Garrison, Tex. Civ.App., 144 S.W.2d 328; National Radio Exchange v. Calhoun, Tex.Civ.App., 52 S.W.2d 946; Kosse National Bank v. Derden, Tex.Civ.App., 36 S.W.2d 295; Rouser v. Hogue, Tex.Civ.App., 189 S.W. 349; Nunez v. McElroy, Tex.Civ.App., 184 S.W. 531; Partridge v. Wooton, 63 Tex.Civ.App. 280...