Leach v. Brown

287 S.W.2d 304

Opinions

W. O. MURRAY, Chief Justice.

This is the second appeal of this cause. The.-first appeal, was disposed, of in this Court in our opinion found in Vol. 251 S.W.2d 553. In the first .appeal the trial court had found that, it- was necessary for plaintiff below to make certain additional- parties, and upon plaintiff’s refusal to do So the .cause was dismissed. We affirmed this judgment of dismissal. Appellant applied to the Supreme Court for a writ of error, which was, by the Supreme Court refused on January 21, 1953.

After the applicátion for a writ of error was refused by the Supreme Court, appellant on August 7, 1953, attempted to file an amended petition in the cause which had theretofore been dismissed by the trial court on January 26, 1952. While this judgment of dismissal makes final disposition of this cause, it was probably without prejudice to appellant’s right to file a new suit. McDonald, Texas Civil Practice, Vol. 4, § 17.17, p. 1355.

Appellant cannot reviye a cause which has been finally disposed of by the simple method of filing an amended original petition. The attempt to have further proceedings in a case which had been dismissed more than a year prior to the filing of the amended original petition was a nullity, and we acquire no jurisdiction by an attempted appeal from a second judgment dismissing the same cause. Witty v. Rose, Tex.Civ.App., 148 S.W.2d 962; Rips v. Ungerman, Tex.Civ.App., 137 S.W.2d 87.

The attempted appeal will be dismissed.