Roosth v. Poth

169 S.W.2d 996, 1943 Tex. App. LEXIS 240

• Court: Court of Appeals of Texas
• Decided: March 24, 1943
• Docket: No. 11276
• Status: Published

Opinion

NORVELL, Justice.

Appellant has filed a motion for leave to file brief after his time has expired under Rule No. 414, Texas Rules of Civil Procedure. This motion is contested by appel-lee.

We have concluded that we can not or need not consider these motions as we have no jurisdiction of this attempted appeal other than to order its dismissal. 3 Tex. Jur. 104, § 52.

Appellee brought this action against appellant in his individual capacity, and also in his capacity as trustee, and some sixteen additional defendants.

From the recitations of an order dated September 21, 1942, it appears that the trial court rendered a judgment by default against all defendants except Harold Roosth, who was dismissed; but that before such judgment was entered of record it was set aside as to all parties defendant, except as to Sam Roosth in his individual capacity. This order of September 21, 1942, then purports to enter a judgment for title and possession of certain lands and premises in favor of appellee and against Sam Roosth.

Roosth moved to vacate this judgment, and on October 8, 1942, the trial court overruled his motion to vacate as well as ap-pellee’s motion for judgment against all parties defendant other than Sam Roosth.

The order recites that notice of appeal was given by Sam Roosth.

It is apparent that no final appealable judgment has been rendered in the cause. There is no judgment disposing of all parties before the trial court, and the record contains no interlocutory order from which an appeal is permitted by statute.

The attempted appeal is therefore dismissed. McClaren Rubber Co. v. Williams Auto Supply Company of Big Spring, Tex. Civ.App., 81 S.W.2d 255, 3 Tex.Jur. 114, § 56.

Appeal dismissed.