Martin v. Crow
| Decision Date | 31 October 1866 |
| Parties | M. M. MARTIN v. SANFORD CROW. |
| Court | Texas Supreme Court |
Suit against three joint makers of a promissory note, judgment by default, and execution ordered against two of them, with an addition at the foot of the judgment that “this cause is continued for service” on the other defendant: Held, that the judgment cannot be considered as final, but as interlocutory only, and is still subject to the control of the court below. Pas. Dig. art. 1476, note 572.
Until a final judgment in the court below, the supreme court can obtain no jurisdiction of a cause. When the whole of the matter in controversy has been disposed of in the court below as to all the parties to the suit, then, and not before, is there a final judgment, from which an appeal or writ of error can be taken. Pas. Dig. art. 1476, note 572.
If, however, the merits of the controversy, as to all the parties, have been adjudicated or disposed of in the court below, and the cause is continued merely for the adoption of proceedings to carry out the decree rendered as to all of the parties before the court, it will be a final judgment, from which an appeal may be taken. 4 Tex. 200, cited by the court; Pas. Dig. art. 1476, note 572.
The 47th section of the act of 13th May, 1846, to regulate proceedings in the district courts, reads as follows: “Where there are several defendants in a suit, and some of them appear and answer, and others make default, an interlocutory judgment by default may be entered against those who do not answer, and the cause may proceed against the others; but only one final judgment shall be given in the suit.” Pas. Dig. art. 1450, note 555.
There should be but one final judgment in a cause, from which an appeal or writ of error can be taken.
The cases of Saffold v. Navarro, 15 Tex. 76, and Chandler v. Tanner, 20 Id. 1, referred to and distinguished from this case.
ERROR from Collin. The case was tried before A. BERRY, Esq., special judge, agreed upon by the parties.
So far as the facts of this case have any relation to the rulings, they are fully stated in the opinion of the court.
Brown & Breedlove, for plaintiff in error.
Sanford Crow, defendant in error, for himself, cited 15 Tex. 76; Id. 124; and 20 Tex. 1.
This suit was instituted by Crow against three parties, A. H. Martin, M. M. Martin, and L. M. Martin. On the 8th February, 1861, judgment by default was rendered against M. M. and L. M. Martin for $152.94, with interest and costs, and execution ordered to issue, with this addition at the foot of the judgment, to wit: “And that this cause is continued for service on the defendant, A. H. Martin.”
Until a final judgment is rendered in the court below, this court has no jurisdiction of the cause. When the whole of the matter in controversy is finally disposed of as to all the parties, then there is a final judgment, and not before, from which an appeal or writ or error can be taken. If the merits of the controversy as to all the parties be adjudicated or disposed of, and the cause only continued for the adoption of proceedings to carry out the decree made as to all the parties before the court, it will be a final judgment that can be appealed from. 4 Tex. 200, and authorities there cited.
In this cause there is no adjudication or final disposition at all as to the rights or liabilities of the defendant, A. H. Martin. He is not dismissed from the suit, nor is it abated as to him, but the “cause” is expressly “continued...
To continue reading
Request your trial
-
Morrow v. Corbin
...400; Warren v. Shuman, 5 Tex. 450; Gross v. McClaran, 8 Tex. 341; Stewart v. Jones, 9 Tex. 469; Little v. Morris, 10 Tex. 263; Martin v. Crow, 28 Tex. 613; Green v. Banks, 24 Tex. 522; Moore v. Schooner Anna Maria, 11 Tex. 655; Wampler v. Walker, 28 Tex. 599; Rodrigues v. Trevino, 54 Tex. 2......
-
Davis v. Wichita State Bank & Trust Co.
...in a case (R. S. art. 2211), the order is merely interlocutory, but is sufficient to reserve the exception to the court's action. Martin v. Crow, 28 Tex. 613. The next question for consideration is: Did the court err in not permitting the plaintiffs to take a nonsuit when the case was calle......
-
United States Fidelity & Guaranty Co. v. Richey
...as the trial court should have rendered. Saffold et al. v. Navarro, 15 Tex. 76; Chandler et al. v. Tanner et al., 20 Tex. 1; Martin v. Crow, 28 Tex. 614. The cause of action in this case is the judgment of another state, and is valid upon its face. The record shows that it was based upon a ......
-
Texas Cities Gas Co. v. Dickens
...Vernon's Ann.Civ.St. art. 2211; Wootters v. Kauffman, 67 Tex. 488, 3 S.W. 465; Kline v. Power, Tex.Civ.App., 114 S.W.2d 617; Martin v. Crow, 28 Tex. 613. The setting aside of the verdict of the jury as to Texas Cities Gas Company and Lone Star Gas Company and granting them a new trial as ag......