Opinion
No. 1359.
May 15, 1918.
Appeal from District Court, Hartley County; Reese Tatum, Judge.
Suit by A. L. Godshalk against J. P. Martin and wife. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with instructions.
Bailey Richards, of Dalhart, for appellant. Art Schlofman and R. B. Stalcup, both of Dalhart, for appellees.
This suit was filed by appellant, Godshalk, September 18, 1912, in the district court of Hartley county, Tex., and was numbered 773 on the docket of said court. On the 25th day of February, 1913, after a showing of service of notice to serve nonresident defendants, appellant obtained a judgment by default. On the 20th day of February, 1917, upon motion of appellant filed in the same cause, a clerical error in the default judgment was corrected. On the last-named date appellees filed their suit in said court to set aside both the original and corrected judgments. This last suit was numbered 987 on the docket of said court, and on the 21st day of August, 1917, judgment was rendered in cause No. 987, setting aside the former judgments entered in favor of appellant in cause No. 773. From this last judgment entered in cause No. 987, after notice of appeal duly given, an appeal was prosecuted to this court and the judgment was here reversed and remanded January 23, 1918. See Godshalk v. Martin, 200 S.W. 535. While that appeal was pending in this court, cause No. 773 was tried in the district court of Hartley county, resulting in a judgment for appellees on the 23d day of August, 1917. From that judgment this appeal is prosecuted. The appeal from the judgment rendered in cause No. 987 deprived the district court of the authority to proceed with the trial of cause No. 773 upon the merits until the judgment rendered in cause No. 987, setting aside the judgment in cause No. 773, had been finally disposed of here. The trial court should have upon its own motion continued cause No. 773 until final judgment in cause No. 987. This appeal, therefore, from a judgment rendered in cause No. 773, while the appeal from the judgment in cause No. 987 was pending in this court, must be set aside.
The judgment is therefore reversed and the cause remanded, with instructions to continue cause No. 773 without prejudice to either party until there is a final judgment in cause No. 987.
Reversed and remanded.
HUFF, C.J., not sitting, being absent in Austin with commission of Judges, passing on writs of error for Supreme Court.