Wesley P. Byers vs. M. H. Janes - Appeal from Bowie County, 2 Tex. 529

Mr. Justice Lipscomb, after stating the facts, delivered the opinion of the court. This suit was brought before a justice of the peace and six jurors, under the 17th

section of the land law, passed December 14,1837, providing for settling the claims of different occupants. And tbe case was taken to tbe district court by a certiorari from that court. From tbe record presented in this court, it appears that there lias been no judgment rendered in tbe court below disposing of tbe case. There seems to have been a verdict of a jury, finding certain facts, on which the plaintiff prayed tbe court to enter up a special decree, which be then and there exhibited to the court, but which prayer was refused, and no judgment or decree was entered.

It is very clear that the refusal of the court to enter the decree prayed for is not subject to revision until there has been a final disposition of the case by the court below. For aught that we know, the cause may still be progressing in the court from whence this appeal was taken, or it may have since been disposed of by a final decree, not brought up for revision.

If, however, there has been a final judgment in the court below dismissing the case at the cost of the plaintiff, we could not reverse the judgment, as we decided at the last term of this court, in the case of Field and Anderson, 1 Tex. 437, that the decision of the justice and the six jurors was not subject to revision in the district court, but that the

summary trial provided by the act was to be final and conclusive. If, then, this case was fairly before us for revision on the final judgment of the district court against the plaintiff, we would be bound to affirm the judgment. As presented, however, the appeal must be dismissed, at the cost of the appellant.