Varrs v. Faulkner

• Decision Date: 07 June 1911
• Citation: 138 S.W. 789
• Parties: VARRS et al. v. FAULKNER et al.
• Court: Texas Court of Appeals

138 S.W. 789

VARRS et al. v. FAULKNER et al.

Court of Civil Appeals of Texas. San Antonio.

June 7, 1911.

Error from District Court, Hale County; L. S. Kinder, Judge.

Action by C. J. Varrs and others against L. M. Faulkner and others. Judgment for defendants, and plaintiffs bring error. Motion to dismiss overruled.

FLY, J.

Defendants in error seek to dismiss this writ of error on the ground that the judgment of the court below is not a final judgment.

It seems that H. F. Jamison, of Sparlin, Ill., was made a defendant in the lower court, but he did not answer, nor does it appear from the record that citation was served upon him, and no notice is taken of him in the judgment, or any other order of the court, and for that reason it is claimed the judgment is not final. The case of Moody v. Smoot, 78 Tex. 119, 14 S. W. 285, seems to be directly in point, and against the motion to dismiss. In that case it was said: "Appellees suggest in their brief there is no final judgment, because there was no disposition of the case as to defendant John D. Hay. If there was no final judgment, we have no jurisdiction to determine this appeal. Hay was made a party defendant. The record does not show that he was ever cited; no citation appears in the transcript. The other defendants answered, but he did not. He is not mentioned in the judgment. Not having been brought into court and not having voluntarily appeared, he was not such a party to the suit as that judgment could be rendered for or against him. We are of opinion, therefore, that the plaintiffs having gone to trial upon the exceptions of the other defendants, and the exceptions having been sustained and the suit dismissed without any application on their part to continue as to Hay, the case stands as if there had been a discontinuance as to him, and that the judgment is a final judgment as to all parties before the court."

The motion to dismiss is overruled.