Wilson Hardware Co. v. Duff , 37 Tex. Civ. App. 446 ( 1904 )

Appellants insist that we erred in dismissing the appeal in this cause, and that our error grows out of a misconception of the facts as disclosed by the record. We stated in the main opinion that cause No. 3707, McFadden et al. v. Simms, was, together with the two garnishment proceedings, consolidated with the suit of appellants against Duff Duff. The order of consolidation is not embodied in the record, and it is difficult to determine from the recitals in the judgment just what consolidations were made. In the light of the entire record we think it probable that the main case of McFadden et al. v. Simms was not included in the order. But however that may be, the correctness of our conclusion is not affected, for the fact remains that the trial court did not dispose of all the parties or all the issues, and expressly retained the cause on the docket and held the judgment open until the matters reserved could be disposed of. The judgment appealed from contains the following order:

"It is further ordered by the court that this case be continued as to the said McFadden, Weiss Kyle and D. R. Simms, and as to the said Texas and New Orleans Railway Co. and as to the Wilson Hardware Co." We adhere to our first conclusion.

As our opinion was addressed to the motion to dismiss, and not to the merits, we stated the facts only in a general way. In doing this we fell into some inaccuracies which did not affect the issue determined, but which we are nevertheless requested to correct. For the sake of accuracy we make the following corrections.

The draft of the railroad company was issued on the 1st of April and delivered to Duff Duff on April 2d. The garnishment was served on the company April 4th, and therefore after instead of before the date of the draft.

The draft was paid by the railroad company to Duff Duff about April 13th. Both before and after Duff Duff had collected the draft of the railroad company the Wilson Hardware Company had presented to Duff Duff for payment the drafts given them by Simms.

This we believe renders our fact findings substantially accurate. The motion is overruled.

Overruled.

Writ of error refused.