
    OWEN et al. v. SMITH.
    (No. 6407.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 18, 1922.
    Rehearing Denied March 1, 1922.)
    Appeal and error @=>80(6)— Judgment failing to find amount defendant should recover over from his codefendant on a note held not final and appealable.
    In an action on a note, in which K., a defendant, pleaded that he was not liable, and in case of judgment against him asked for judgment against one of his codefendants for the amount he might have to pay, a judgment against defendants on the note, with no determination as to K.’s rights against his code-fendant, is not a final judgment, so as to give the appellate court jurisdiction of an appeal therefrom.
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    Action by L. C. Smith against Huts Owen and others. From judginent for plaintiff, defendants appeal.
    Appeal dismissed.
    N. C. Walker, of San Saba, for appellants.
    F. J. Johnson, of Llano, for appellee.
   BRADY, J.

Appellee, L. C. Smith, brought this suit against appellants, Huts Owen and Jim P. Kelley, to recover a balance due on a promissory note. Appellants admitted liability on the note, but set up a cross-action for the recovery of damages arising out of alleged wrongful acts by appellee, in compelling a sale of certain cattle mentioned in a chattel mortgage securing the note. In the view we have taken of the case it is not necessary to set out the. pleadings and issues made with relation to the cross-action.

In addition to the cross-action for damages, Kelley alleged that, at the time the cattle were shipped, appellant Huts Owen and one J. E. Odiorne had purchased his interest in the cattle, paying him a certain sum therefor. He alleged that therefore he was not liable, and prayed that, in the event he should be found liable on the note, he recover from his codefendant Owen a judgment for any amount that he might be compelled to pay on the note, or any judgment rendered thereon.

While this pleading by Kelley was meager, and perhaps does not clearly or correctly indicate the theory upon which he sought to recover over against his codefendant, it is plain that he sought to make such issue and práyed for such relief. The court peremptorily instructed a verdict for the plaintiff .and against the defendants on their cross-action, and judgment was rendered on the verdict. However, the judgment did not dispose of the issue made by Kelley, with relation to his claim to recover over against his codefendant. It is therefore urged by appellants that judgment was not final. This proposition we sustain, but the holding requires us to dismiss the appeal, since there is no final judgment to support it, and we have no jurisdiction.

In Linn v. Arambould, 55 Tex. 611, which seems to have been uniformly followed, our Supreme Court held that there could be no final judgment, from which an appeal would lie, until all the issues as to all the parties had been finally adjudicated in the district court. To the same effect is the holding of this court in Bank v. Bank, 152 S. W. 499, and in these cases it was suggested that the proper practice, after the dismissal of the appeal by the appellate court, is for the district court to proceed with the case as though it had never been tried.

On the point just discussed, counsel for appellee makes the argument that the pleading of Kelley was subject to a general demurrer by his codefendant, and that there was therefore no issue between them to be disposed of by the judgment. It suffices to say that no demurrer was ever sustained to this pleading. Indeed, the record does not show that any demurrer was urged by any of the parties to the suit. Kelley, by his pleading, however defective it might be, made this an issue in the cause. It was not disposed of on the trial below, and therefore remains an issue in the case. This exact question was decided, and we think correctly, in Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1062.

None of the other questions raised on the appeal will be discussed, because we have no jurisdiction to determine any of them.The appeal will be dismissed.  