On Motion for Rehearing
The appellant insists that this Court erred in dismissing her appeal. Premise for her contentions is asserted to be in the Rules of Civil Procedure and cases under the Rules and antecedent statutes on partition of personal property.
Of course, it would be true that if this case should properly be considered to be a case within the Rules regarding partition, and the decree entered in the trial court to be the determination of the share or interest of joint owners or claimants to the property, etc., disposing of that part of the controversy in a partition case, it would constitute a final and appealable judgment. Marmion v. Wells, Tex.Civ.App., San Antonio 1952, 246 S.W.2d 704, error refused. Such would be the case because of the applicability of Rules authorizing an appeal, absent which no appeal would lie because under general rules such decree would not amount to a final and appealable judgment. Bailey v. Shaw, Tex.Civ.App., Austin 1930, 26 S.W.2d 669, error refused.
From a careful examination of the judgment in the divorce case of appellant and L. A. Ferguson (incorporating the order granting a severance therefrom on the issues later separately tried in the proceedings giving rise to this appeal) and the pleadings of the appellant upon the trial of the issues so severed and tried after entry of the decree of divorce, we believe the situation here is semi-analogous to the situation confronting the court in the case of Sterett v. Dyer, Tex.Civ.App., San Antonio 1950, 230 S.W.2d 461, error refused. In that case, a plaintiff obtained a separate trial on the issues relating to the merits of whether he was entitled to share in the profits of the defendant’s business transactions, the period within which he should have such entitlement, the percentage of his share, etc., from any trial of the issues to determine the amount of money, if any, to which he was entitled. It was the holding of the court that the defendant could not appeal from the judgment rendered against him in favor of the plaintiff because same was not final and appealable, and that no appeal would lie until there had been another trial or hearing to determine the amount of the debt on an accounting.
The motion for rehearing is overruled.