The record discloses that appellant rented to appellee, for the year 1912, 112 acres of land, and as rent therefor was to receive one-third of the corn and one-fourth of the cotton raised on said premises; and this suit was brought by him to recover said rent, and also to recover the sum of $522.50, alleged to be due for a span of mules sold and furnished by him to appellee, to enable appellee to make a crop on said premises during said year, as well as for $34.45, alleged to be due as balance on rent for the year 1911. Appellant likewise sued out a distress warrant, which was levied upon the crop grown upon said premises; and prayed for judgment for his rents, advances, and for foreclosure of his landlord's lien upon the property so distrained. Appellee replied by general and special exceptions, a general denial, and reconvened for damages for illegally suing out said distress warrant. There was a jury trial, resulting in a verdict in behalf of plaintiff for said sum of $34.45, with interest thereon, and in favor of defendant upon his plea in reconvention in the sum of $750, and judgment was entered in accordance therewith.
Notwithstanding that the record shows that the chief controversy was over appellant's right to recover for the value of the mules alleged to have been sold by him to appellee, and for foreclosure of his landlord's lien thereon, still the verdict and judgment failed to dispose of these issues, as well as failed to pass upon the question as to whether or not there was anything due appellant for rents for said year, for which reason appellant asserts that the judgment is not final. Ordinarily, appeals can only be taken from final judgments. See article 2078, Rev.Civ.St. 1911. And it has been frequently held by the courts of this state that a judgment is not final which fails to dispose of all the issues raised by the pleadings. See Waco Cement Works v. Smith, 162 S.W. 1158, and cases there cited; also, the case of Sapp v. Anderson, 135 S.W. 1068, where previous cases on this subject are cited and reviewed.
Appellee claims, however, that the assignment raising this question is not properly briefed, and hence should not be considered; but he overlooks the fact that the question raised is jurisdictional, and the error assigned is fundamental, for which reason it cannot be waived. Besides this, appellee asserts that, since there was a general verdict in behalf of appellant, the doctrine as to final judgment, above announced, does not apply. There was no general verdict, however, in his behalf, but only a verdict for one claim, to wit, $35.45, upon which the court instructed a verdict in his behalf, ignoring the claim for rent for 1912, as well as that for value of the mules. See First Natl. Bank of Mason v. Vander Stucken, 37 S.W. 170, where a suit was brought to establish claims against an estate on two notes, executed by decedent. The jury, to whom both claims were submitted on issues made by the pleadings, found for the plaintiff as to the claim based on one of the notes only, and neither the verdict nor judgment mentioned the other. It was held that no appeal would lie from the action of the court on such unadjudicated claim, and the appeal was dismissed; which case, we think, is decisive of the question here involved.
Notwithstanding that we are without authority, in the state of the record, to pass on any of the assignments, still, in view of another trial in the court below, it is proper to say that it is doubtful whether the petition stated a cause of action that would authorize a recovery as to the rents of 1912, or for the mules claimed to have been furnished, in that it did not state or show the amount of rents due, nor state the facts showing the indebtedness of appellee for the mules and negativing payment therefor. Demurrers, though filed, were not urged to this pleading in the trial court, and hence must be regarded as waived; but, as there was no final judgment, it becomes our duty to dismiss the appeal, and it is so ordered.
Appeal dismissed.
It seems that we were mistaken in stating that appellee's demurrers and exceptions were not presented to or passed upon by the court. This was occasioned by our overlooking an amended transcript, which contains a recital to the effect that they were in fact presented to and overruled by the court. We reiterate our intimation as to the insufficiency of the petition, but have no authority to do anything more than to make the suggestion, since the appeal must be dismissed.
The motion for rehearing is overruled.