
    CARVER BROS. v. MERRETT et al.
    (No. 1430.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 15, 1915.
    Rehearing Dismissed April 1, 1915.)
    Appeal and Error <§=>80 — “Final Judgment” — Disposition op Issues.
    Where, in an action by an assignee of a claim against the debtor, as primarily liable, and the assignor, as guarantor of payment of the claim, the issue was whether the debtor was liable to the assignee, and the assignor prayed .for judgment over against the debtor in the event the assignee recovered against the assignor, a judgment for the assignee against the assignor for a specified sum and for the assignor against the debtor for a less sum, but without determining whether the debtor was liable to the assignee, was not a “final judgment,” and an appeal therefrom must be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494 — 509; Dec. Dig. <§=>80.
    For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    Appeal from District Court, Titus County; W. T. Armstead, Judge.
    Action by John Merrett and others against Carver Bros, and the Merchants' & Planters’ National Bank of Mt. Pleasant. There was a judgment for plaintiff against the defendant bank, and in favor of the bank against defendant Carver Bros., and the latter appeal.
    Dismissed.
    S. P. Pounders and J. M. Burford, both of Mt. Pleasant, for appellants. T. C. Hutch-ings, of Mt. Pleasant, and L. E. Keeney, of Texarkana, for appellee.
   WILLSON, C. J.

As shown in the opinion disposing of a former appeal of this cause (155 S. W. 633), the Merchants’ & Planters’ National Bank of Mt. Pleasant, one of the appellees, claiming that Carver Bros., the appellants, were indebted to it in the sum of $1,773.39 for money advanced by it to pay for cotton purchased by them, assigned its claim to Merrett, the other appellee, and guaranteed the payment thereof. The suit was by Merrett against Carver Bros, as the parties primarily liable for the payment of the debt, and against the bank as the guarantor of the payment thereof. In its answer the bank prayed for judgment over against Carver Bros, in the event Merrett recovered against it. The judgment from which this appeal was prosecuted'was in favor of Mer-rett against the bank for said sum of $1,-773.39, interest and costs, and in favor of the bank against Carver Bros, for the sum of $1,208.77, interest and costs. The issue made by the pleadings and testimony as to whether Carver Bros, were liable to Merrett or not was not determined; and, as the judgment therefore was not a final one, this court is without jurisdiction of the appeal. Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 840; Burch v. Burch, 28 S. W. 828; Otto v. Halff, 32 S. W. 1052; Bank v. Vander Stucken, 37 S. W. 170; Burrows v. Cox, 38 S. W. 50. This fact was overlooked at the time we undertook to dispose of the appeal by the opinion filed on the 4th day of last March. That opinion will be withdrawn, and the appeal will be dismissed, because this court is without power to hear and determine it. 
      ⅞=>$⅛ otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     