Opinion
No. 2317.
October 21, 1920.
Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
Suit by Lige Burkley and another against George Anderson, in which the Widows' and Orphans' Home and Charitable Institution of the Church of the Living God was made a party at defendant's request. From a judgment dismissing the suit so far as it was by the named plaintiff against defendant and awarding defendant, the relief he sought against it, the Widows' and Orphans' Home appeals. Appeal dismissed.
Perkins Perkins and Thomas Shearon, all of Rusk, for appellant.
John B. Guinn, of Jacksonville, for appellee.
The suit was by Lige Burkley and C. L. Bryant against appellee, George Anderson. It was to try the title to a tract of land in Cherokee county. In his answer Anderson alleged that he did not then own and had never owned the land, and then alleged that appellant, a corporation, owned it and by contract had bound itself to convey it to him. He asked that appellant be made a party and that he have judgment requiring it to specifically perform its contract to convey to him. Appellant in its pleading denied having contracted to convey the land to Anderson, and sought judgment against him for same and for damages for withholding the possession thereof from it. The appeal is by the Widows' and Orphans' Home, etc., alone, from a judgment dismissing the suit so far as it was by Burkley against Anderson and awarding said Anderson the relief he sought against said Widows' and Orphans' Home, etc. No mention was made in the judgment of the plaintiff C. L. Bryant, and it is conceded in the briefs of the parties to the appeal that the suit, so far as it was by him against Anderson, was not disposed of by the judgment. So, it appears the judgment is not a final one, and that this court therefore is without power to revise it and cannot do otherwise than dismiss the appeal. Cock v. Marshall Gas Co., 224 S.W. 527, decided here January 29, 1920, and the cases there cited to wit, Benge v. Sledge, 132 S.W. 873; Jackson v. Coombs, 65 S.W. 385; Machine Co. v. Lipper, 179 S.W. 701. Therefore it is dismissed.