Riddle v. Bearden

80 S.W. 1061, 36 Tex. Civ. App. 97, 1904 Tex. App. LEXIS 168

• Court: Court of Appeals of Texas
• Decided: May 14, 1904
• Status: Published

Opinion

SPEER, Associate Justice.

Appellee instituted this suit in the District Court of Palo Pinto County to recover damages against the appellant for alleged malicious prosecution. The appellant answered denying liability, and by cross-action sought to recover from appellee actual damages for an alleged libel, the criminal prosecution for which libel formed appellee’s basis for recovery herein. A trial was had before a jury, and resulted in a verdict and judgment for appellee for $3 actual and $20 exemplary damages, the court for some reason refusing to submit to the jury the cross-action of appellant.

We are not at liberty to review the questions presented by appellant in his assignments of error, inasmuch as there appears to be no final judgment rendered in the case.

Upon the verdict of the jury awarding damages upon appellee’s demand as aforesaid, the court entered the following judgment: “Wherefore it is ordered, adjudged and decreed by the court that the plaintiff, R. B. Bearden, do have and recover of the defendant, Dr. J. Riddle, $3' as actual damages, and $20 as exemplary damages, and his costs of this suit, and that he have his execution and it is so ordered.” Ho disposition whatever was made of appellant’s counterclaim. Until this has been done there is no such final judgment, as will support an appeal to this court.

We shall not pause to determine nor even to consider whether appellant’s counterclaim was properly pleaded in this suit. It was pleaded by him, and until the issue thus raised is in some manner disposed of the judgment of the District Court lacks the essential element of finality. Clopton v. Herring, 26 S. W. Rep., 1104; Kirby v. Linn, 34 S. W. Rep., 169; Linn v. Arambould, 55 Texas, 611; Texas & P. Ry. Co. v. Fort Worth Street Ry. Co., 75 Texas, 82.

The appeal is dismissed.

Dismissed.