
    DUPREE et al. v. DAVIS et al.
    (No. 936-4729.)
    (Commission of Appeals of Texas, Section A.
    March 23, 1927.)
    Appeal and error <&wkey;>82(3) — Order vacating order within same term confirming partition sale is not “final” or appealable, sale and report not being vacated (Rev. St. 1925, art. 2249).
    Order setting aside order made at same term confirming sale of real estate by trustee appointed by court for purpose of sale in partition suit is not “final” or appealable under Rev. St. 1925, art. 2249; sale and report thereof not having been vacated or affected.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final.]
    Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.
    Suit by Tom Davis and others against Lee R. Davis and others. From an order setting aside an order confirming a sale of real estate, the purchasers at the sale, R. B. Dupree and another, appealed to the Court of Civil Appeals. On certified questions. Questions answered.
    Spell, Ñaman & Penland, of Waco, for appellants.
    Nat Harris, of Waco, for appellees.
   BISHOP, J.

The Court of Civil Appeals for the Tenth Judicial District certifies questions under statement as follows:

“This suit was originally instituted by Tom Davis et al. against Lee R. Davis et al., being the heirs of - Davis, deceased, for a partition of their father’s estate, which consisted of a tract containing about 457 acres of land in McLennan county. A judgment was rendered in the partition suit, adjudicating the interests of the various heirs and decreeing that the property could not be divided in hind. The trial court ordered it sold by a trustee which he appointed, the sale to be subject to the court’s confirmation. Thereafter the trustee, I. Mach Wood, reported to the court that he had sold the property to appellants, R. B. Du-pree and J. T. Willis, for the sum of $17,000', and the court did on March 1, 1926, confirm said sale and order the trustee to execute a deed to said Dupree and Willis upon their payment to him of the $17,000 in cash. Thereafter, on March 6th, at the same term of court, the trial court on its own motion set for hearing the matter of setting aside the order which it had made confirming said sale, and on March 19th the court heard the matter and entered the following order: ‘It is therefore on this, the 19th day of March, 1926, ordered, adjudged, and decreed by the court on his own motion, which motion being based upon verbal protest of the contestants herein without any pleadings being filed or evidence adduced, that said order of confirmation be and the same is hereby in all things set aside and held for naught.’ To said order so entered Dupree and Willis in open court duly excepted and gave notice of appeal to the Tenth Court of Civil Appeals, and the cause is now pending in this court.
“The transcript filed in this court shows that Dupree and Willis filed and had approved their appeal bond on March 26, 1926, and thereafter on March 31, 1926, during the same term of court, the transcript shows that the trustee of said estate reported that he had sold the property to'Mattie Caldwell and others for $20,550, which sale was on said date confirmed by the trial court. As will appear from the dates, the sale to Mattie Caldwell and confirmation thereof was made by the trial court after Du-pree and Willis had perfected their appeal by a cost bond to this court.
“The record shows that neither R. B. Dupree nor J. T. Willis, the sole appellants in this cause, filed any written pleadings in said court; neither did they file any written objections or exceptions to the action of the trial court in setting aside the order confirming the sale to them; neither did they file any written motion asking the court to confirm the sale to them or to set aside his order that he had made setting aside his previous order of confirmation, and there are no pleadings showing appellants had tendered performance or offered to pay the purchase price.
“At a former day of this term, this court held that it had no jurisdiction of the cause and dismissed the appeal because neither of. appellants were parties in the trial court and could not therefore appeal. There is a motion pending for rehearing, and by reason of the insistence of the parties that we were in error in our former holding, and by reason of the importance of . the question involved, and by reason of there being some doubt in our minds as to the correctness of our holding, we respectfully submit to the Honorable Supreme Court of this state for its determination upon the facts hereinbe-fore set out, the following questions.”

The questions certified are:

“First Question. Where a trial court has confirmed the report of sale of real estate made by a trustee appointed by the court for said purpose, and thereafter during the same term the court sets the order of confirmation aside, thereby leaving the report of sale undisposed of, can any of the parties to said litigation appeal to the Court of Civil Appeals from the order which the trial court made setting aside his previous order of confirmation?
“Second Question. Were R. B. Dupree and J. T. Willis, by virtue of their having purchased from the trustee' the property in controversy and the trustee having reported the sale to the court, and the court having approved same and thereafter at the same term having set the confirmation aside, made such parties to the litigation in the trial court that they were authorized to prosecute an appeal to this court from the order of the trial court setting aside its former order confirming the sale to them, without their having filed any pleadings or written objections or exceptions to the action of the trial court in setting aside said confirmation of sale?
“Third Question. Were we in error in dismissing for want of jurisdiction this cause?”

The order confirming the sale made full disposition of the matter under consideration by the court. It was an award “of the judicial consequence which the law attaches to the facts” on the report of sale made by the trustee and submitted to the court. Such order was a final judgment of the court, and from this order, under the provisions of article 2249, Revised Civil Statutes 1925, an appeal might have been prosecuted. McBride v. United Irrigation Co. (Tex. Civ. App.) 213 S. W. 988 (writ of error refused). We are also of opinion that, had the court made and entered an order vacating the sale made by the trustee, same would have been a final judgment from which an appeal would lie in contemplation of this article.

However, the order from which this appeal is sought to be prosecuted makes no disposition of the matter presented to the court by the report of sale. Its only effect is to set aside the former order of confirmation during the term of court at which it was made, and at a time when the court had complete control over its former order. It left the report of sale to Dupree and Willis undis-posed of. The sale reported was not by this order vacated. The former order alone was affected by this order from which an appeal is here attempted. This order was interlocutory and not final. It left the matter of effecting a sale and disposition of the property involved still pending as it was prior to the order of confirmation. Being interlocutory, and there being no statutory provision allowing an appeal from an interlocutory order of this character, neither the parties litigant interested in the partition of the property, nor the purchasers, even had they by plea of intervention made themselves parties to the litigation, could prosecute an appeal from the order vacating the former order of confirmation.

We recommend that the questions certified be answered in the negative.

GTJRETON, C. J. Opinion of the Commission of Appeals, answering certified questions, is adopted, and ordered certified to the Court of Civil Appeals. 
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     