Plaintiff, Peden Iron Steel Company, brought this suit against the Houston Transportation Company and John G. Tod, defendants, upon certain notes for principal, interest, and attorney's fees. The Houston Transportation Company answered by general denial, and, specially, that the charge of 10 per cent. attorney's fees is unjust, etc. Defendant John G. Tod answered by general denial, and pleaded specially that, if he is liable at all on the notes sued on, it is as indorser thereof, and that therefore he prays that, if any judgment be rendered in favor of plaintiff and against the defendants, he have judgment over against his codefendant, the Houston Transportation Company.
The judgment rendered is as follows:
"Be it remembered that on this, the 13th day of October, 1913, came on to be heard the above numbered and entitled cause, and came the plaintiff, Peden Iron Steel Company, and announced ready for trial, and also came the defendant Houston Transportation Company, by its attorneys, and announced ready for trial, and also came the defendant John G. Tod, in person, and announced ready for trial, and the defendants in open court withdrew their demand for a jury, and all matters of fact and law were submitted to the court, and the court, having heard the pleadings and evidence, is of the opinion that the defendants are jointly and severally indebted to the plaintiff in the sum of fourteen hundred and six and 72/100 ($1,406.72) dollars, which amount plaintiff is entitled to recover from said defendants, jointly and severally, with interest from date at the rate of eight per cent. (8%) per annum.
"It is therefore ordered, adjudged, and decreed by the court that plaintiff, Peden Iron Steel Company, do have and recover of and from the defendants, Houston Transportation Company and John G. Tod, jointly and severally, the sum of fourteen hundred and six and 72/100 ($1,406.72) dollars, with interest from date at the rate of 8 per cent. per annum and all costs of suit, for which let execution issue."
It will be noted that the decree does not dispose of Tod's plea for judgment over against the Houston Transportation Company in case judgment is rendered against him, without which it is not a final judgment. Cook v. Fore, 37 S.W. 970; Florence v. Choice et al., 124 S.W. 436.
The appeal is therefore dismissed.