Only two assignments of error are presented by the briefs of appellants, both complaining of the judgment in the matter of costs.
By the first assignment appellants complain of the judgment in adjudging that defendants, Maria Stahl, Philip F. Wagner, and Leila M. Stahl, recover their costs. The trial court adjudged the costs between the different parties under article 1438, R.S., providing that "the court may, for good cause to be stated on the record, adjudge the costs otherwise than as provided in the preceding articles of this chapter." The reasons for so doing stated in the judgment are that the suit had resulted in an adjustment of the equities between tenants in common and partition of the property. Appellants in their pleadings claimed an undivided onehalf interest in the property and sought partition and an accounting and adjustment of the equities as to the rents. Maria Stahl and Philip Wagner in their original answer pleaded general demurrer and general denial. But, as the case proceeded, new parties were brought in, numerous pleadings filed, and the case finally became one of numerous and complicated issues as to the equities of the parties in the adjustment of the rents. We do not think the court erred in adjudging the costs as was done, for the reasons given. Ft. Worth R. G. Ry. Co. v. Robertson (Sup.) 138 S.W. 107. But, if this were not true, this assignment of error could not be sustained. In the motion for a new trial, no objection was made to the judgment as to the costs in the matter complained of. The rule seems to be well settled in this state that parties will not be heard to complain of the judgment as to costs, unless the matter had been brought to the attention of the trial court in a motion for new trial, or in some other proper way. Bridge v. Samuelson, 73 Tex. 523, 11 S.W. 539; Wiebusch v. Taylor, 64 Tex. 56. The assignment is overruled.
The second assignment of error complains of the judgment as to costs in adjudging against interveners, J. O. and Rosina P. Davis, only such costs as had accrued subsequent to their intervention. The interveners, having bought certain interests in the property pending the litigation, intervened in the case setting up their rights as such purchasers. In adjudging the costs, the court adjudged against said interveners all the costs incurred from and after the filing of their plea of intervention. This objection was properly presented in the motion for a new trial. We think the trial court did not err in the matter complained of. We find no error in the judgment, and it is affirmed.
It was insisted in oral argument by appellants that this court has no jurisdiction to hear and determine this appeal because the judgment appealed from is not a final judgment. One S. O. Plummer, having bought an interest in the property, appears to have been made a party by appellants. He appears to have sold out to J. O. and Rosina P. Davis, who thereupon intervened and in their plea in intervention claimed some sort of relief against Plummer. During the progress of the case, J. O. and Rosina P. Davis filed a pleading setting up the death of S. O. Plummer and praying that his heirs be made parties, and they were *Page 989 made parties as such. Afterwards these heirs were formally dismissed. Appellants made no effort to make the heirs of Plummer parties to their suit. In the judgment, no adjudication is made of the rights of Plummer. We think we may assume that proper proof was made that Plummer was dead.
We think the judgment is a final judgment