On Appellant’s Motion for Rehearing.
We now hold, what we assumed without holding on original hearing, that it was not a fatal defect for appellant to have filed under Rule 329, Texas Rules of Civil Procedure, his petition and motion for a new trial in Cause No. 322,231, styled Martelia Harkness v. Ralph Harkness in the 55th District Court'of Harris County, Texas, under a different style and number, in a different district court of Harris County. Rule 330, T.R.C.P. (see Sections (a) and (e), provides broad powers with respect to the transfer of cases and proceedings therein, from one to another of the civil district courts of Harris County, and with respect to the interchange of the judges. By force of Rule 330 the jurisdictions of said courts and the functions of the judges thereof have been integrated, and made interlocking as far as possible without obliterating the identity of the courts.
Said courts have the same Clerk. And proceedings are instituted’ by being filed in his office, and they are filed by him by rotation in the various courts. After a cause has been lodged in a particular court it may be transferred, or any proceedings *680therein transferred to another of the courts, and m effect such transfers can be made informally by one of the judges of another court sitting as judge of the court wherein the case is formally lodged, though said judge remain in his own courtroom. In this proceeding the judge of the 55th Judicial District was the judge who tried same, he having tried the former divorce action. Had this proceeding been filed in the 55th District Court, any of the other judges could have tried same either by having same transferred to his court in the court’s docket, or having it informally transferred by sitting as judge of the 55th District, though he would actually sit in his courtroom. The only limitation that presently occurs to us, to the exercise of this integrated jurisdiction by the Judges is this: the judge of one of the courts cannot dismiss a case for want of prosecution at the time it is in the process of being tried in another court. See DeZavala v. Scanlan, Tex.Com.App., 65 S.W.2d 489. Of course in a county where there is only one judge, he cannot both hold a case under consideration and at the same time dismiss for want of prosecution.
The fact that the petition for motion for new trial was filed under a different style and docket number does not prevent it from being treated as a motion for new trial. Smith et al. v. Higginbotham et al., Tex.Civ.App., 112 S.W.2d 770, 773; Bachus v. Roper, Tex.Civ.App., 195 S.W.2d 261. See Hunsinger v. Boyd et al., 119 Tex. 182, 26 S.W.2d 905. It is the substance of the petition which determines its nature, not its endorsement nor docket number. See the Bachus case, supra. Here appellant’s petition not only recited that it was his “Petition and Motion for New Trial in Cause No. 322,231, styled Martelia Harkness v. Ralph Harkness in the 55th District Court of Harris County, Texas,” it contained all the requirements of Rule 329. He alleged he had no actual knowledge of the pending of the divorce action, and that he had a meritorious defense to the claim of his former wife asserted in the petition that no community property had been accumulated during marriage, etc.
A suit for partition of the estate of the parties, which is embraced in a suit for divorce, is severable therefrom. We do not question that a defendant in such an action, who has been served by publication, can proceed under Rule 329 to set aside only so much of the judgment rendered in the divorce suit as partitioned the estate of the parties, without also proceeding against so much of the judgment as decreed the divorce. This was in fact done in Bracht v. Bracht, Tex.Civ.App., 107 S.W. 895, and we have found no authority holding to the contrary.
But we adhere to our conclusion that the court’s finding to the effect that there was no community property accumulated during the marriage would not bar a subsequent suit by appellee for partition of community property. The allegation in the wife’s petition that there was no property accumulated during marriage was entirely collateral to the only issue on which she sought relief, i. e., divorce. Her petition was not one for partition of the estate of the parties, and in addition to an express prayer for divorce, there was only a prayer for general relief. Not only was no judgment based on said finding, none could be based thereon for want of any support in the pleading. The allegation that “there was no property accumulated during said marriage” is not tantamount to alleging that the wife had accumulated separate property during the marriage which was her separate property. There was no allegation that she owned any separate property, and no basis alleged for partitioning to her any separate property. Any such allegation would doubtless have been closely scrutinized as to proof.
The court could not have supposed that he was adjudging to the wife any property as being her separate property. Therefore Hume et al. v. Schintz et al., 90 Tex. 72, 36 S.W. 429, is not here in point. The situation here is ruled by such authorities as Kuehn v. Kuehn, Tex.Com.App., 242 S.W. 719; Philipowski v. Spencer, 63 Tex. 604; and Word v. Colley, Tex.Civ.App., 173 S.W. 629, writ refused.
The motion for rehearing is refused.