On Rehearing.
In the motion for rehearing by Khalil and Abdullah Arouani (paragraph 8, page 3), the position is assumed that the judgment of March 18, 1937, mentioned in our original opinion, was not a final judgment and did not become so until after the judgment of April 24, 1937, was rendered at the subsequent term of court
*674This position, seemingly, is in conflict with the position taken in the brief filed for appellants prior to original submission. At page S of the brief appellants say: “The pica of contribution was not filed until April 13, 1937, which was long subsequent to the date of the original judgment. It may be argued that said plea only had to do with the previous awarding by the Court of a prior claim in favor of appellee Battistic; however, it contained new matters and new evidence was introduced concerning same and the subsequent order of April 24, 1937, was certainly contrary to and in conflict with the original judgment of the Court, dated March 18, 1937. The caption of the transcript shows that the term of Court at which the subsequent order was rendered began April 12, 1937, which was a different term to that during which the original decree was entered. The above authorities firmly establish the proposition of law that there cannot be any amendment or correction of a prior judgment at a subsequent term which involves correction of a judicial error.* Without further argument, we most respectfully submit that the two orders of the Court are in hopeless conflict with each other.”
.However, without regard to this seeming inconsistency, we think the judgment of March 18th, for reasons stated in our original opinion, was final and appealable in the respects mentioned, and, as it was not appealed from, became binding upon the parties.
In response to both the pleadings and proof, the trial court, in its judgment of April 24, 1937, allowed Battistic contribution against Khalil Arouani, but refused contribution as against Abdullah. We reversed the judgment in this respect, allowing Battistic contribution also against Abdullah, and reformed and affirmed the judgment accordingly. With reference to our action in this respect, appellants— Khalil and Abdullah* — contend in their motion for rehearing, paragraph 1, that: “This Honorable Court erred in holding that appellee was entitled to the fund allotted to Abdullah Arouani in the sum of $1,625.06, because there is no cross assignment of error filed in this court or the trial court authorizing such recovery”; they also contend that we erred in allowing contribution against Abdullah, because not authorized by the evidence.
As to the latter contention, we are content to rest the decision on the reasons given in the original opinion. As to the first, that is, that Battistic did not cross-assign error on the action of the court in refusing him contribution as against Abdul-lah, we stated in the original opinion that, “Appellee complains of the action of the court in this respect and, while the complaint is styled ‘counter proposition/ yet essentially it is a cross-assignment of error and will be so treated.” In the discussion, however, we did not set out the cross-assignment (styled “counter proposition”), but, in view of the contention now made that appellee simply urged a counter proposition, and not a cross-assignment, and that the court was not justified in allowing Battistic, as a credit on his preferred claim against the partnership, the fund ($1,625.-06) allotted to Abdullah, we here set out the contention of Battistic, styled “counter proposition,” in the form in which the same was urged, as follows:
“Counter Proposition Number 6: Where the undisputed evidence shows that Khalil Arouani, appellant, one of the partners in the Egyptian Art Gallery, unlawfully appropriated and converted funds belonging to said partnership and transmitted said funds to his brother, Abdullah Arouani, also an appellant herein and one of the partners of the Egyptian Art Gallery, on a final accounting of the partnership of the Egyptian Art Gallery, Charles Battistic, the other partner in said partnership and the appellee herein, is entitled to contribution from Abdullah Arouani to the extent of the unlawful withdrawal.”
“Counter Proposition Number 7: Where the undisputed evidence shows that Charles Battistic, appellee, owned one half of the partnership known as the Egyptian Art Gallery, and that he as an individual had loaned said partnership $7,000.00, which had not been repaid, that Khalil Arouani had withdrawn and sent to Abdullah Arou-ani and Marie Arouani, appellants, $5,072.-65 and $4,500.00 in cash from the partnership funds, and where undisputed evidence further shows that on a partnership accounting the funds awarded the Egyptian Art Gallery are insufficient to repay the said Battistic, appellee, the trial court correctly gave the appellee judgment for contribution against Khalil Arouani and erred in failing to give said Battistic judgment for contribution against Abdullah Arouani and Marie Arouani.”
Counter proposition No. 6, in our opinion, is an appropriate proposition, based *675on the assignment contained in No. 7, to the effect that, on the facts as recited in the assignment, “The trial court correctly gave the appellee judgment for contribution against Khalil Arouani, and erred in failing to give said Battistic judgment for contribution against Abdullah Arouani. * * * ” In alleging that the court erred in failing to give judgment for contribution against' Abdullah Arouani, a distinct complaint was made in regard to the action of the trial court; lacking only, in an appropriate name to satisfy the most punctilious that appellee was cross-assigning error as against Abdullah Arouani. We think it immaterial that the contention was styled “counter proposition,” because, as repeatedly held, the courts will look to the substance, and not merely to the form, in determining matters of this kind. See Heatley v. W. P. Ponder & Sons, Tex.Civ.App., 40 S.W.2d 951, 952; Bankers’ Lloyds v. Seymour, Tex.Civ.App., 49 S.W.2d 508; Anderson v. Byrum, Tex.Civ.App., 73 S.W.2d 571, 572.
Appellants also contend that Battistic is not entitled to complain of the action of the court in the respect under consideration, because “no appeal bond was filed by Battistic and no complaint whatever made, except in his brief under a counter proposition.” As against appellant, Abdullah Arouani, we think Battistic was entitled to cross-assign error, without perfecting an independent appeal. 3 Tex.Jur. § 609, p. 873.
After carefully considering the motions for rehearing by the parties, appellants — ■ Khalil, Abdullah and Marie Arouani — and appellee Battistic, the same are overruled.
Motions for rehearing overruled.