
    BANKS v. BLAKE et al.
    (No. 6710.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Appeal and Error (§ 750) — Assignments of Error — Effect.
    An assignment that the court erred in overruling plaintiff’s motion to set 'aside the judgment for defendants and to retry the cause on its merits as between all the parties, because the judgment was not final, in that it did not dispose of the rights of all the parties, nor all the issues, such motion being merely one for a new trial, and filed too late, and not an equitable suit for a new trial, was insufficient, to present for review the question whether the judgment was final.
    (Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750-.]
    2. Appeal and Error (§ 20) — Orders Ap-pealable — Jurisdiction.
    Where a motion for a new trial to set aside a judgment rendered at a former term was filed too late, so that the district court had no jurisdiction to entertain it, no appeal Would lie from an order overruling the motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. § 20.]
    3. Appeal and Error (§ 719) — Appellate Court — Jurisdiction.
    It is within the province of the Court of Civil Appeals to determine in any case whether it has jurisdiction to entertain an appeal, regardless of whether the matter is presented by an assignment of error.
    [Ed. Note.' — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. .§ 719.]
    4. Partition (§ 95) — Proceedings — Final Judgment.
    Plaintiff sued for partition, claiming an undivided interest in the land in controversy, and, his suit being resisted on the ground that he had no title, he appealed, and pleaded, in addition to the plea of not guilty, the defense of the statute of limitations of three, five and ten years. A verdict was rendered in favor of defendant B. alone, while the judgment recited that plaintiff take nothing and the defendants go hence, etc. Held, that the effect of the judgment was to declare that plaintiff had no title to any part of the land, and therefore was not entitled to partition as to one and all of the defendants, who, so far as plaintiff’s claim was concerned, were entitled to go hence, etc., and was therefore final.
    [Ed. Note. — For other eases, see Partition, Cent. Dig. §§ 300-316; Dec. Dig. § 95.]
    Error from District Court, Jasper County; W. B. Powell, Judge.
    Suit by W. Gerard Banks against Roi Blake and others for partition. From a judgment in favor of defendants, plaintiff brings error, and appeals from an order denying a motion to set aside the judgment and for a new trial.
    Affirmed.
    See, also, 143 S. W. 1183.
    '.H. C. Howell, of Jasper, for plaintiff in error. Blake & Williams, of Jasper, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   McMEANS, J.

W. Gerard Banks brought this suit against Roi Blake, Henry Bendy, Marunda Bendy, Robert Bendy, Jim Bendy, Alma Bendy, Alford Bendy, Mrs. Emma McKinney, John McKinney, Mrs. Willie Watson, Dave Watson, Mrs. Dora Wagner, F. M. Wagner, Kate Dawson, Wyatt Dawson, Jerry Bryant, and Alice Bryant for partition of 177 acres, the Jesse B. McNeely labor of land, in Jasper county; the plaintiff claiming an undivided interest of 157 acres therein, and conceding the ownership of 10 ■ acres to the defendants Roi Blake, Jerry Bryant, and Alice Bryant, and 10 acres to the other defendants.

Defendants Kate and Wyatt Dawson answered, praying that the land be partitioned .and that the portion thereof to which they were entitled be set apart to them. The defendants Dave and Willie Watson answered, pleading a general demurrer and general denial. The defendants Roi Blake, Jerry Bryant, and Alice Bryant answered, denying that they were tenants in common with plaintiff, but alleged that they were the owners in fee simple of the entire labor and in possession thereof, and pleaded not guilty, and also filed a cross-bill, in which they sought, by action of trespass to try title, to recover the whole tract. In their answer they sought no recovery as against their codefendants. The other defendants did not answer. .

To the cross-bill above mentioned the plaintiff answered, pleading not guilty and - the statute of limitation of three, five, and ten years.

The case was tried before a jury, and upon a verdict in favor of defendant Roi Blake alone a judgment was entered, which recited:

“That the plaintiff, W. Gerard Banks, take nothing by his suit, and that defendants go hence without day, and that plaintiffs pay all costs in this behalf expended,” etc.

At the next succeeding term of the court the plaintiff, claiming that the judgment theretofore rendered was not a final judgment, filed a motion to set aside the judgment and to retry the case, which motion was by the court overruled, to which plaintiff excepted and gave notice of appeal. After-wards the plaintiff, Banks, sued out a writ of error from the original judgment and from the judgment overruling his motion to set aside the judgment and retry the case, and the appeal is now before us.

Appellant’s only assignment of error is as follows:

“The court erred in overruling the motion of plaintiff, W. Gerard Banks, to set aside the judgment rendered in said cause on the 11th day of December, A. D. 1912, and to retry said cause on its merits as between all the parties to said cause, and in refusing to set aside said judgment and retry said cause on its merits as between all the parties to said cause, because said judgment is not a final judgment, in that it does not dispose of all the parties nor all the issues between the parties in said cause.”

We are of the opinion that this assignment of error is not sufficient to bring into review the question of whether the judgment was or was not a final judgment. The only complaint presented by it is as to tbe action of tbe court in overruling a motion to set aside tbe judgment made at a subsequent term of tbe court. This motion cannot be regarded as an equitable suit for a new trial because of tbe absence of necessary allegations to make it such. Being merely a motion to set aside- a judgment which bad been rendered at a former term, in other words, a motion for a new trial, tbe district court was ■without jurisdiction to entertain it, because it came too late. This being true, no appeal therefrom would lie, and therefore this court has no jurisdiction to pass upon the question presented by the assignment.

But it is. within the province of this court to determine in any case whether it has jurisdiction to entertain an appeal, regardless of whether the matter is presented by an assignment of error, and-in determining that question in this case we have carefully looked to the record to determine whether the judgment appealed from was or was not a final judgment, and after mature deliberation have concluded that_ it was final. It is true that the judgment does not follow the verdict, for the verdict is in favor of Boi Blake alone, while the judgment is that the plaintiff take nothing, and that the defendants go hence, etc. The plaintiff makes no complaint of this error, and, if he had, no question of our jurisdiction could have been predicated upon it. The suit as originally brought was for partition, the plaintiff claiming an undivided interest in the land. His suit was resisted on the ground that he had no title, and to meet this contention he pleaded, in addition to the plea of not guilty, the defense of the statute of limitations of three, five, and ten years. The effect of the judgment as rendered was to declare that he had no title to any part of the land, and therefore he was not entitled to a partition, and that, as to the defendants — all of them, that is, so far as plaintiff’s claim of title and right of partition were concerned — they go hence without day. We think, therefore, that such judgment was final, and as the case is before us without any assignment of error that we can sustain, the judgment of the court below must be affirmed; and it has been so ordered.

Affirmed.  