Sapp v. Anderson (135 S.W. 1068, 1911)

RICE, J.

Appellee, Anderson, brought this suit in the justice court against appellant to recover $75 as damages for breach of contract in building a storehouse in the town of Killeen. Appellant replied by general denial, special plea in bar, and also by way of- counterclaim and plea in reconvention for the sum of 8113.50. There was a jury trial in the justice court, resulting in a verdict for plaintiff for the sum of 850, and judgment was rendered thereon accordingly in his favor for said amount. Neither the verdict nor the judgment disposed of appellant’s plea in reconvention. On appeal to the county court, appellee filed a motion to dismiss the appeal on the ground that it is apparent from the record that no final judgment had been rendered in the justice’s court, in that the same had not disposed of defendant’s cross-bill and plea in reconvention. The county court sustained this motion and dismissed the appeal, from which judgment this appeal is prosecuted, and the only question for determination is the correctness of its judgment in so doing.

Appellant assigns error on the action of the court in dismissing his appeal, asserting that the judgment of the justice’s court was final. By article 1668 of the Revised Statutes, it is provided that any party to a final judgment in a justice court may appeal therefrom to the county court. Hence it follows that, if the judgment of the justice’s court in this case was final, appellant was entitled to appeal therefrom; otherwise not. It is said in Linn v. Arambould, 55 Tex. 611, quoting from Justice Smith on the subject of the finality of a judgment, that: “When the whole of the matter in controversy is disposed of as to all the parties, then there is a final judgment, and not before, from which an appeal or writ of error can be taken.” Hr. Freeman on Judgments, § 29, says: “A final decree is one which disposes of the cause, either by sending it out of the court before a hearing is had on the merits, or after a hearing on the merits, decreeing either in favor of or against the prayer of the bill. But no order or decree which does not preclude further proceedings in the case in the court below should be considered final.” So that, if the judgment of the justice’s court failed to dispose of all the issues presented by the pleadings, then, according to the above authorities, the same was not final. A specific issue was raised by the defendant’s plea in reconvention, upon which he was entitled to be heard, and upon which it was the duty of the jury and the court to pass in the verdict and judgment. The exact question here presented has been determined by this court adversely to appellant’s contention. In the case of Gulf, Colorado & Santa Fé Ry. Co v. Stephenson et al., 26 S. W. 236, Chief Justice Fisher said: “The petition for injunction discloses that the justice’s court rendered the judgment, execution of which is sought to be restrained, in such a way as not to dispose of all the issues presented by the pleadings. A judgment in favor of the plaintiff will, as to purely matters .of defense, he held to dispose of such defenses as may be pleaded without the necessity of the judgment’s making any express disposition of them; but when the answer presents, in the nature of a cross-bill or plea in reconvention, a cause of action against the plaintiff, upon which the defendant asks affirmative relief, an issue is raised that is as important to be disposed of as is that presented by the petition of the plaintiff. The rule is well settled in this state that, in order for the judgment to be final, it must dispose of the issues presented. The judgment of the justice court did not dispose of the issue raised by the plea in re-convention or cross-bill, nor was this issue acted upon in any way by that court. This was essential to be done in order that the judgment rendered by the justice may be final.”

In Clopton v. Herring, 26 S. W. 1104, the same ruling was made, and the doctrine announced in G., C. & S. F. Ry. Co. v. Stephenson, supra, was referred to and expressly approved. In Huggins v. Reynolds, 51 Tex. Civ. App. 504, 112 S. W. 116, Chief Justice Conner of the Second District said: “Appellee was a tenant of appellant and instituted suit in the justice’s court upon an account aggregating $96. The landlord, Huggins, replied with a counterclaim, aggregating $105.70. In the justice court appellee Reynolds failed t