Upon the original consideration of this cause, the writer felt considerable doubt as to the correctness of the conclusions reached, as expressed in such original opinion and felt inclined to embody in a dissent his individual views, but did not do so, deciding to reserve such expressions until a motion for rehearing came on to be heard, in order that he might give the matter more matured thought, and in the hope that either the doubts in his mind might be removed, or the views of his Brethern might be changed. But neither has the one nor the other taken place. Hence, at this time, the writer enters his dissent to the overruling of the motion for a rehearing, and to the action of the majority in adhering to this court's former judgment, and he will briefly state his reasons therefore:
I cannot agree fully with the majority of the court, whose views are expressed in the majority opinion by the writer. While the trial court did in so many words state in its order and judgment of May 3, 1913, that plaintiff's "amended motion for new trial and amended objections to the confirmation of the report of the commissioners of partition" was overruled "as a motion for new trial," yet according to the writer's view of the matter, in setting aside the order of confirmation of the commissioners, its action must be construed, and the effect of such action must be extended so as to include what was in fact the evident purpose and intention of the court. The only objection urged by plaintiff to the confirmation of said commissioners' report was that the title to 30 acres out of the 80-acre tract was already *Page 868 vested in plaintiff by virtue of a deed of conveyance made to him by his father in 1897, and that therefore this 30 acres was not subject to partition. Attached to his amended motion and protest of April 30, 1913, were certified copies of the two deeds by virtue of which he claimed exclusive title to the 30 acres, and to which he had referred in his exceptions filed April 25. It was the last day of the term, and the court evidently concluded that there was not sufficient time to try this issue, and sought to leave the matter open until a subsequent term. If it should be established by a further hearing at a subsequent term that this 30 acres did not belong to the estate to be partitioned, then it would be excluded from the partition; if it should be determined that it was subject to partition, then the judgment of April 2, 1913, would stand. It is unfortunate that the wording of the order and judgment is as it is, but must the hands of the court be fettered by reasons of this language so as to prevent its doing equity? It is evident to the writer, in spite of the language of the order, that it was in the mind of the court to leave undetermined the question of whether or not this 30-acre tract should be included in the partition. Therefore there was a matter undisposed of which was material to the sufficiency of the judgment. Hence, whether we deem said judgment of April 2d interlocutory in its nature and scope, as claimed by defendant in error, or that it was in effect set aside by the action of the court in retaining control of and referring to a further hearing the material issue above mentioned, the writer is of the opinion that the judgment of March 28, 1914, should be given full force and effect, and that such judgment should be affirmed. He holds that, in spite of the language used in the order purporting to overrule the plaintiff's motion for a new trial, the legal effect of granting his motion for a rehearing, on the confirmation of the report of the commissioners, was to grant a new trial as to all issues involved. He confesses that he is not able to cite any authority directly in point but Long Berry v. Garnett, 45 Tex. 400, Linn v. Arambould, 55 Tex. 611, and the cases there cited are persuasive. In West v. Bagby, 12 Tex. 34,62 Am.Dec. 512, Chief Justice Hemphill gives the following definition:
"A final judgment is the award of the judicial consequences which the law attaches to the facts, and determines the subject-matter of controversy between the parties."
Justice Smith tersely defines it in the following words:
"When the whole of the matter in controversy is disposed of as to all the parties, then there is a final judgment, and not before." Linn v. Arambould, supra.
Or, as expressed in Freeman on Judgments, page 29:
"A final decree is one which disposes of the cause either by sending it out of the court before a hearing is had on the merits, or, after a hearing on the merits, decreeing either in favor of or against the bill. But no order or decree which does not preclude further proceedings in the case below should be considered final."
Measured by either of these definitions, can we say that the judgment of April 2d, construed with the order of May 3d, which expressly reserved for further hearing a matter that went to the very vitals of a part of defendant's right of recovery on her cross-plea, constituted a final judgment? The writer thinks not. The nature, effect, and scope of a judgment ambiguous in its terms must be read in the light of the whole record. Dunlap v. Southerlin, 63 Tex. 38, and cases there cited.
Looking to the whole record, the writer feels that there can be no question but that in granting plaintiff's objection or protest to the report of the commissioners, by which report land claimed by him as his separate property was partitioned, the court intended and did grant a new trial in so far as the issue of title to this 30-acre tract was concerned, and that by so doing it in legal effect granted a new trial as to all issues involved in the suit for partition.
The writer believes that the judgment of the trial court from which this appeal is taken should be affirmed.