Opinion
No. 3351.
January 9, 1939. Rehearing Denied January 18, 1939.
Error from District Court, Liberty County; Thos. B. Coe, Judge.
Suit to partition land by Mason Barngrover against A. H. Waldman and others. A judgment was rendered decreeing partition of the property, and A. H. Waldman brings error.
Appeal dismissed.
Gordon, Lawhon, Sharfstein Bell, of Beaumont and R. E. Biggs, of Liberty, for plaintiff in error.
E. B. Pickett, Jr., of Liberty, for defendants in error.
This suit was brought by Mason Barngrover against A. H. Waldman, and the George A. Barngrover Trust Estate, of which A. J. Hartel, Jr., George A. Barngrover and David E. O'Fiel were Trustees, and George A. Barngrover, Individually, seeking to partition certain land and the improvements thereon, same being a portion of the Jesse Devore League of land in Liberty County, Texas.
The case was tried to the court and judgment rendered decreeing partition of the property. From that judgment, plaintiff in error brings this appeal.
Plaintiff in error insists that the judgment must be reversed for want of necessary parties defendant, that is because the trustees of the trust were not made parties defendant to the suit, but we have concluded that we cannot reach that question as defendant in error Mason Barngrover has filed a motion to dismiss the appeal, which we think must be sustained, for the reason that the judgment appealed from was not a final judgment, it not disposing of all the parties. George A. Barngrover was made a party defendant in his individual capacity. There is a pleading in the record signed "Attys for George A. Barngrover". It thus appearing that he made his appearance, the judgment should have disposed of him, but the judgment is silent as to him. He having been made a party defendant in his individual capacity, and, as we construe the record, having appeared, and the judgment in no way disposing of him or any interest he may have individually had in the property sought to be partitioned, the judgment was not final, and the motion to dismiss must be and the same is sustained, and the appeal is dismissed.
Appeal dismissed.