Opinion
No. 3812.
October 23, 1930.
Appeal from Gregg County Court; W. R. Hughes, Judge.
Action by the General. Motors Acceptance Corporation against G. A. Bodenheim. From the judgment, plaintiff appeals.
Appeal dismissed.
May 22, 1926, appellee, G. A. Bodenheim, purchased property (described as a "compressor" and "coil") of the appellant, General Motors Acceptance Corporation, paying a part of the purchase price in cash and agreeing to pay the remainder thereof, to wit, $336, in monthly payments of $14 each. This suit by appellant to recover $252 of the $336 alleged to be due and unpaid, with interest and attorney's fees, was commenced July 6, 1928. Appellee claimed the compressor and coil were not as warranted by the seller, and that, because they were not, he had been damaged in the sum of $350. The trial to the court without a jury resulted in a judgment in appellant's favor against appellee for $364.66 and foreclosing a lien on the compressor and coil created to secure same, and in appellee's favor against appellant for $350, the amount of damages claimed by the former. For some reason not stated on the record, whereas it should have been (article 2066, R.S. 1925), the court, in violation of the general rule entitling the successful party to recover the costs of the suit (article 2056, R.S. 1925) in his judgment ordered the costs to be "taxed equally against both plaintiff and defendant." The appeal was prosecuted by the acceptance corporation.
McGown McGown and L. B. Otey, all of Fort Worth, for appellant.
Young Stinchcomb, of Longview, for appellee.
Having determined appellee was entitled to recover of appellant a specified sum and that appellant was entitled to recover of appellee a different specified sum, the court should have set off the one sum against the other, and, having done so, should have rendered judgment for the balance in favor of the party entitled thereo. As the court did not do that, the judgment is not a final one from which an appeal could be prosecuted. Article 2211, R.S. 1925; Walker v. Means, 28 Tex. Civ. App. 210, 67 S.W. 167; Eastham v. Sallis, 60 Tex. 576; Kinney v. Tel. Co. (Tex.Com.App.) 222 S.W. 227. This court, therefore, can not do otherwise than dismiss the appeal.