Minnock v. Garrison
| Decision Date | 24 October 1940 |
| Docket Number | No. 2375.,2375. |
| Parties | MINNOCK et al. v. GARRISON et al. |
| Court | Texas Court of Appeals |
Appeal from Nineteenth District Court, McLennan County; R. B. Stanford, Judge.
Suit for partition by Laura Minnock and others against J. L. Garrison and others, as heirs and independent executors of the estate of J. W. Garrison and wife wherein Dr. Lattimore and others filed cross-actions. From an adverse order, plaintiffs appeal. On motion to dismiss appeal.
Appeal dismissed.
Harris & Gordon and Frank Wilson, all of Waco, for appellants.
Tom M. Hamilton and J. W. Spivey, both of Waco, for appellees.
This suit was brought by Laura Minnock and others against J. L. Garrison and others, as heirs and independent executors of the estate of J. W. Garrison and wife, for the partition of said estate. The plaintiffs also joined as defendants Drs. Lattimore, Maxfield and others, it being alleged as to these last named defendants that they were claiming to hold some sort of debts against said estate, but that said debts were barred by limitation and therefore uncollectible, and plaintiffs prayed for cancellation thereof. The main defendants, J. L. Garrison and others, filed exceptions to plaintiffs' petition. The defendants, Lattimore and others, filed pleas of misjoinder of parties, and, by way of cross-action, sought judgment for their debts. Upon the call of the case, the court sustained the defendants' exceptions to plaintiffs' petition, and, upon plaintiffs declining to amend, dismissed plaintiffs' suit. The order of dismissal made no attempt to dispose of the cross-action filed by Dr. Lattimore and others. The plaintiffs have attempted to appeal to this court.
The appellees have filed motion to dismiss appeal on the ground that the order sought to be appealed from is not a final judgment. It is a well-settled rule that an appeal can be prosecuted only from a final judgment, and that in order for a judgment to be final, it must dispose of all of the parties and all of the issues in the case. 3 Tex.Jur. 103-122. The order sought to be appealed from dismissed plaintiffs' suit for partition of said estate and for cancellation of the debts held by Dr. Lattimore and others, but it did not undertake to dispose of the cross-action filed by Dr. Lattimore and others for judgment on their said debts. The mere dismissal of the main suit did not have the effect of dismissing the cross-action. Jungbecker v. Huber, 101...
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Roberts v. Roberts, 13628.
...in the same final judgment; Rule 96, Tex.Rules of Civil Procedure; Jungbecker v. Huber, 101 Tex. 148, 105 S.W. 487; Minnock v. Garrison, Tex.Civ.App., 144 S.W.2d 328. The situation here is not distinguishable in principle from Varn v. Varn, 58 Tex.Civ.App. 595, 125 S.W. 639, 641, where, aft......
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