White v. Mitchell
| Decision Date | 16 October 1883 |
| Docket Number | Case No. 1436-4526. |
| Court | Texas Supreme Court |
| Parties | SUSAN M. WHITE ET AL. v. MARY T. MITCHELL ET AL. |
OPINION TEXT STARTS HERE
APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.
Suit by Susan White and others against Mary T. Mitchell, as administratrix of the estate of Samuel Mitchell, to recover an interest in land and for partition. Mary T. Mitchell claimed homestead rights as surviving widow, etc. The case will be understood from the opinion and statement in syllabus.
M. D. Priest, for appellants.
J. F. Cooper, for appellees.
The judgment of June 14, 1881, determined the rights of the respective parties in the three hundred and twenty acres of land of which partition was sought. That judgment was final in its character. Merle v. Andrews, 4 Tex., 200;Cannon v. Hemphill, 7 Tex., 184;McFarland v. Hall, 17 Tex., 690.
An appeal might have been prosecuted from that judgment, and this seems to have been recognized by the parties plaintiff, for, after their motion for a new trial was overruled, they gave notice of appeal, and caused a statement of facts to be made out and filed; yet they filed no appeal bond until the 11th March, 1882. This was too late to perfect their appeal, and in so far as they now seek a revision by appeal of the judgment of June 14, 1881, their appeal must be dismissed, and as the case is presented, that judgment must be held conclusive of the rights of the parties.
The judgment confirming the report of the commissioners appointed at a former term of the court to partition the land in accordance with the former judgment was rendered on the 7th January, 1882, and both parties gave notice of appeal therefrom, and filed appeal bonds within proper time, but the assignments of error filed by the plaintiffs relate only to the judgment of June 14, 1881; hence they cannot be considered, that judgment not being properly before us for revision.
The judgment of June, 14, 1881, established the right of Mary T. Mitchell to have “one hundred and forty acres, to be taken out of the eastern portion of the said survey so as to include the improvements on the same.” The judgment entered upon the report of the commissioners gives to her one hundred and forty acres of land off of the eastern end of the survey; but the land so set apart to her does not cover the dwelling-house and perhaps some other improvements. The bill of exceptions shows that one hundred and forty acres of land might have been set...
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...made and the decree of partition entered, there is another final judgment or order, from which an appeal may likewise be taken. White v. Mitchell, 60 Tex. 164; Moor v. Moor (Tex.Civ.App.) 63 S.W. Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326, 328 (1907) (emphasis added). In apply......
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