
    THOMASON v. SHERRILL et al.
    (No. 405.)
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1928.
    Rehearing Denied March 23, 1928.
    1. Dismissal and nonsuit <@=ol9(l) — Statutory provision that plaintiff’s nonsuit shall not prejudice adverse party’s claim for affirmative relief is not restriction on right to nonsuit but prohibition against prejudicing claim for affirmative relief (Rev. St. 1925, art. 2182).
    Provision in Rev. St. 1925, art. 2182, that plaintiff may dismiss, if same shall not thereby prejudice right of an adverse party to be heard on his claim for affirmative relief, is not intended as restriction upon or limitation of right to take nonsuit, but is simply prohibition against exercise of that right having any prejudicial effect on defendant’s claim for affirmative relief.
    2. Appeal and error <@=>66 — In absence of statute, finality is essential characteristic of ap-pealable order, judgment, or decree.
    In absence of special statutory provisions to contrary, one of most essential characteristics of' an appealable order, judgment, or decree is finality.
    
      3. Appeal and error <⅜»76(1) — - Defendant may not appeal from order not affecting right, since it is not “final judgment” of which he may complain.
    If no right of defendant is affected by order, it is not “final judgment” within terms of his right to complain of it upon appeal.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Pirst and Second Series, Pinal Decree or Judgment.]
    4. Appeal and error <S=>76(I) — “Final judgment,” giving rise to right to appeal, is one wherein whole subject-matter In controversy is disposed of.
    Pinal judgment, such as gives rise to right to invoke jurisdiction of appellate court, is one in which whole subject-matter in controversy is disposed of.
    5. Appeal and error <3=»78(4)— Plaintiff’s order of dismissal held not final determination giving defendant right of appeal.
    Where plaintiff secured order of dismissal, and defendant appealed from such order on ground that right asserted by him in answer was not determined, held that there was no final determination of defendant’s rights, giving him right of appeal.
    6. Appeal and error <⅜=>78(4) — Court of Civil Appeals held without jurisdiction to review on appeal order refusing' to reinstate case after dismissal by plaintiff and purported adjudication that defendant’s pleadings did not set up cross-action.
    Where order and judgment appealed from as described in notice of appeal and appeal bond was refusal of court to reinstate case after plaintiff had secured dismissal and of purported finding and adjudication that defendant’s pleading did not set up cross-action, held, order being in no sense final judgment or order, that Court of Civil Appeals was without jurisdiction to hear ease.
    Appeal from District Court/ Haskell County ; Bruce W. Bryant, Judge.
    Suit by R. E. Sherrill and another, as executors of the estate of W. A. Black, against G. W. Thomason and others. Case dismissed. Prom an order refusing to set aside dismissal and reinstate the case, defendant named appeals.
    Dismissed.
    G. W. Thomason, of Haskell, for appellant.
    H. R. Jones and Murchison & Davis, all of Haskell, for appellees.
   PUNDERBURK, J.

R. E. Sherrill and R. O. Montgomery, executors of the estate of W. A. Black, brought this suit in trespass to try title against G. W. Thomason et al. Defendant Thomason answered, among other things to the effect that the deceased, W. A. Black, was indebted to one J. O. Poe and wife for certain .services rendered, to the aggregate value of the land; that one-half of said account or claim had been transferred to the defendant; that prior to his death Black had placed said Poe and wife in possession of the premises; and that the indebtedness due by Black to Poe and wife, one-half of which had been transferred to the defendant, was a valid, subsisting, and established claim, indebtedness, and a lien upon the land. The prayer of the answer was that “plaintiffs take nothing by virtue of their suit,” including a prayer “for general and special relief, such as he is entitled to under law and equity and for costs of suit.”

On April 19, 1927, the court entered an order as follows:

“This the 19th day of April, 1927, came the plaintiffs and say they will no longer prosecute their said suit. It is therefore considered and ordered by the court that this be dismissed and that all costs are adjudged against the plaintiffs, for which execution may issue.”

On April 25, 1927, Thomason filed a motion, asking the court to set aside the order of dismissal noted above and to reinstate the cause on the ground that defendant had previously filed a cross-action setting up affirmative relief. Plaintiffs demurred to the motion, and on May 20, 1927, the court overruled the demurrer to the motion but held that defendant’s answer did hot set up a cross-action as against the plaintiff, for which reason alone the motion to set aside the order of dismissal and to reinstate the case was overruled. Defendant Thomason excepted to this order of the court, and gave notice of appeal. Thereafter an appeal bond was filed, which describes the order or judgment appealed from as follows:

“On the 20th day of May, A. D. 1927, the said R. E. Sherrill and R. C. Montgomery, executors, recovered judgment against the said G. W. Thomason that the pleadings in this case do not set up a cross-action as against the plaintiffs, and that his motion to set aside the order and judgment dismissing plaintiffs’ suit in this case be in all things overruled and the plaintiffs be permitted to take a nonsuit, and plaintiffs’ suit be not reinstated on the docket of the court, which judgment is here referred to and made a part hereof for full statement of same.”

The first question to be determined is one of jurisdiction. It is not assigned, but arises from an inspection of the record. In quite a number of decisions of the courts of this state there are found expressions and implications that deny the right of the plaintiff to bake a nonsuit in cases where the defendant has filed a cross-action or counterclaim seeking affirmative relief against the plaintiff. Revised Statute 1925, art. 2182, dealing with the subject of nonsuit, is as follows:

“At any time before the jury has retired, the plaintiff may take a nonsuit, but he shall not-thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such nonsuit may be taken at any time before tbe decision is announced.”

From tbe terms of tbe statute itself, tbe only limitation of tbe right to take a non-suit is that in cases tried by a jury tbe same shall be claimed before tbe jury has retired, and in cases tried by the judge, such right shall be claimed before the decision is announced. Tbe provision that the plaintiff “shall not thereby prejudice tbe right of an adverse party to be beard on his claim for affirmative relief” is not intended, we think, as a restriction upon or limitation of, the right to take a nonsuit, but is simply a prohibition against tbe exercise of that right having any prejudicial effect upon tbe defendant’s claim for affirmative relief. If a case should arise where prejudice to tbe defendant could not be prevented except by denying tbe right of plaintiff to take a nonsuit, tbe denial of such right would be mandatory. We cannot, however, well see bow such a condition could exist. It has already been decided that, in order not to prejudice the defendant’s claim, tbe plaintiff’s pleading may be looked to in aid of defects in defendant’s pleadings. Jones v. Wagner (Tex. Civ. App.) 141 S. W. 280.

It has also been determined that plaintiff cannot, after nonsuit, claim 'the privilege to be sued in tbe county of bis residence upon tbe claim asserted by tbe defendant. Bailey v. Federal Supply Oo. (Tex. Com. App.) 287 S. W. 1090.

If both plaintiff and defendant, in their respective ' claims against each other, seek 'to litigate tbe same matter, tbe plaintiff cannot by nonsuit thereby withdraw such matter from tbe litigation. Short v. Hepburn, 89 Tex. 622, 35 S. W. 1056.

These decisions are but examples showing bow tbe courts give effect to tbe statutory requirement that a nonsuit shall not be permitted to prejudice the claim of a defendant seeking affirmative relief. We find ourselves unable to imagine a case where in some such way as above illustrated prejudice to the defendant from a nonsuit may not be effectually prevented without any restriction on tbe right of tbe plaintiff to take a nonsuit. We construe tbe later decisions on this question to fully sustain this view. Then what right has a defendant in a suit wherein, by cross-action or counterclaim, be seeks affirmative relief against plaintiff, to prosecute bis appeal from an order dismissing tbe plaintiff’s suit but which order in no wise purports to affect tbe defendant’s right to continue tbe prosecution of bis cross-action or counterclaim? If tbe right of a plaintiff to take a nonsuit is an absolute one in a jury case, if claimed before tbe jury retires, orin a case tried by a judge before tbe decision is announced, and tbe court is prohibited from permitting such non-suit to prejudice tbe claim asserted by tbe defendant, then, if tbe court in its order dismissing the plaintiff’s suit does not purport to dismiss or affect tbe counterclaim or cross-action, there is no reason to impute to tbe court an intention to do so. In Bailey v. Federal Supply Co., tbe Commission of Appeals, in an opinion expressly approved by tbe Supreme Court, has bad occasion to pass upon the effect of an order of dismissal, reading as follows:

“On this 17th day of December, 1924, upon request of plaintiff herein, it is ordered, adjudged, and decreed by the court that the above .numbered and entitled cause be, and same is hereby, dismissed, at plaintiff’s cost, for which execution may issue.”

It will be observed that this order is almost exactly like tbe one under consideration, but tbe court held that such order evidenced no intention of dismissing a cross-action of the defendant against tbe plaintiff, and did not have such effect. If other authority than tbe statute itself were required, we consider this decision as settling tbe question.

In the absence of special statutory provision to tbe contrary, one of the most essential characteristics of an appealable order, judgment, or decree is finality. It is axiomatic that, if no right of tbe defendant is affected by an order, it is not a final judgment within tbe terms of bis right to complain of it upon appeal. A final judgment such as gives rise to tbe right to invoke tbe jurisdiction of an appellate court is one wherein tbe whole subject-matter in controversy is disposed of.

Havard v. Carter-Kelley Lumber Co. (Tex. Civ. App.) 162 S. W. 922; Wright v. Chandler (Tex. Civ. App.) 173 S. W. 1173.

So we conclude that, regardless of whether appellant’s pleading in tbe court below set up only defensive matters or sought affirmative relief, and considering tbe order of dismissal as tbe one attempted to be revised on this appeal which, as hereafter shown, we think it is not, there was no such final determination of any of bis rights as gave him tbe right of appeal If the answer did not seek affirmative relief, then ‘the right of plaintiff to have tbe entire ease dismissed is so complete that there could exist no re-dressable wrong to appellant from an exercise thereof. On tbe other band, if tbe answer of defendant sought affirmative relief so as not properiy to be affected by plaintiff’s nonsuit, then, so far as tbe record before us shows, bis action may still be pending in tbe trial court.

What has been said upon this point is based upon a consideration of tbe order dismissing the case in response to plaintiff’s nonsuit as being tbe judgment appealed from, but it will be observed from tbe foregoing statement that appellant does not complain of the order dismissing the case. The action complained of is tbe refusal of tbe court, to reinstate tbe case and of a purported finding and adjudication that defendant’s pleadings do not set up a cross-action as against the plaintiff. That such is the action of the trial court appealed from is abundantly shown by the notice of appeal, the appeal bond, which the law requires shall describe the judgment appealed from, the assignments of errors,.and from all of the contentions set out in appellant’s brief. 'If appellant had had any right to complain of the order dismissing plaintiff’s suit, which is the only order in the record having any of the characteristics of a final judgment, it is made clear by the record and particularly by the description of the judgment in his appeal bond that ■he is not attempting to do so. First National Bank v. J. I. Campbell Co. (Tex. Civ. App.) 133 S. W. 311; Scaling Oil Co. v. Head (Tex. Civ. App.) 241 S. W. 767; Cooper v. Lynch (Tex. Civ. App.) 241 S. W. 769.

For the additional reason then] that the order and judgment actually attempted to be appealed from as described in the notice of appeal and appeal bond is in no sense a final judgment or order of the court, we cannot escape the conclusion that we are without jurisdiction to hear the case. Being without jurisdiction, we can, of course, make no authoritative determination of the question whether appellant’s answer did or did not, by way of cross-action or counterclaim, seek affirmative relief against appellees. There may be some question as to the propriety of our indicating our views on this question. Lest, however, that what we have said may be construed as a suggestion to appellant that he still may have the right to prosecute his claim against appellees, we feel it may not be amiss to say that we think appellant’s answer did not allege a counterclaim or cross-action seeking affirmative relief. The appeal will be dismissed; but the costs of the appeal will be adjudged against appellant.

Dismissed. 
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