Opinion
No. 6587.
October 3, 1923.
Appeal from District Court, McLennan County; H. M. Richey, Judge.
Action by E. B. Reed against H. Runion and others. From an order on motion of defendants, setting aside judgment of former term, plaintiff appeals. Appeal dismissed.
Johnston Hughes, of Waco, for appellant.
This is an appeal from an order setting aside and canceling a judgment of a former term obtained through fraud. The record does not disclose a final appealable judgment, and we must dismiss this appeal for want of jurisdiction. The facts show that the appellant, Reed, recovered a default judgment in the Seventy-Fourth district court against appellee Runion and others as sureties on a replevin bond which appellee Runion furnished to hold property sequestered by Reed. Later, at the second succeeding term of this court, appellee Runion filed his motion, praying that the default judgment theretofore rendered against him be set aside and canceled because of the fraud practiced by appellant, Reed, in obtaining it, in that he (Reed) had falsely and fraudulently represented to appellee Runion that he had or would dismiss the suit, and that he had no notice of the setting of the same for trial, and further pleading a valid defense to the suit of Reed.
Upon a hearing the trial court found that Reed had falsely and fraudulently represented to Runion that he had dismissed the suit, and but for said representation Runion would have appeared and defended in the suit with a valid defense, and entered an order canceling and annulling the judgment rendered at the previous term in favor of Reed against Runion.
There was no judgment rendered upon the merits of the case as pleaded in appellees' motion to cancel and annul the former default judgment. Appellant's appeal is from this interlocutory order of the court setting aside and annulling the default judgment; hence the appeal is not one authorized by our statute which requires a final judgment upon the merits of the case before appeal.
An order vacating and annulling a default judgment obtained at a former term of the court through fraud is interlocutory, as distinguished from a final judgment upon the merits of the case, as pleaded by said motion to vacate and annull and therefore an appeal will not lie until the entire case as made by the motion is disposed of upon its merits; at which time, if properly presented as a part of the record in the case, this court can review any alleged error of the trial court in vacating and annulling the former default judgment, the same as any other interlocutory order or assignment of error. Gross v. McClaren, 8 Tex. 341; Goss v. McClaren, 17 Tex. 107, 67 Am.Dec. 646; Stewart v. Jones, 9 Tex. 469; Houston v. Starr, 12 Tex. 425; Taylor v. Fore, 42 Tex. 256; Lyon-Taylor v. Johnson (Tex.Civ.App.) 147 S.W. 605; McKean v. Ziller, 9 Tex. 58.
Appeal dismissed.