The opinion
On Motion for Rehearing.
In a second motion for rehearing, appellee, Mrs. Cora Johnson, earnestly insists that, if the case is not to be afiirmed, it should be re-’ versed generally, and that we committed error in not reversing the judgment in favor of First National Bank in Brownwood. While the proper disposition of the motion is by no means free from doubt, we have concluded that the motion for rehearing should be granted.
Mrs. Johnson sued appellant upon a beneficiary certificate, asking for no relief against the bank except “in the 'alternative only and in the event it should be held for any reason” that she was not entitled to recover against appellant. The trial court was of opinion that she was entitled to judgment against appellant, and in accordance with that opinion he rendered the only judgment which could properly have been rendered on that phase of the case — a judgment in favor of the bank. The judgment does not profess to pass on the merits of her claim against the bank, but recites that “since the plaintiff’s cause of action as against the defendant, First National Bank in Brownwood, is in the alternative; that she is not entitled to recover any judgment against the defendant, First National Bank in Brownwood.” Content with her judgment against appellant, Mrs. Johnson did not appeal from the judgment in the bank’s favor, and we believe that there was no necessity for her to take an appeal.
The effect of that judgment is that there has been no adjudication of the merits of appellee’s claim against the bank. The judgment clearly shows that no adjudication was made because the lower court believed (erroneously, as we have held) that on the facts as developed she was entitled to recover against appellant. The judgment in favor of the bank having been rendered on an erroneous premise, it should be reversed in order that the merits of her claim against it may be adjudicated. As we construe them, the authorities give us the right to reverse the judgment in favor of the bank, although no appeal was taken therefrom.
The Supreme Court, in the case of J. M. Hamilton & Co. v. Prescott, 73 Tex. 565 , 11 S. W. 548, 549 , has stated the rule applicable.to such cases as follows: “We think the conclusion to be deduced from these apparently conflicting eases is that this court, when it finds error in the proceedings of the lower court as to any party to the judgment, and not as to. another, and that a proper decision of the case as to one is not dependent upon the judgment as to the other, will reverse in part and affirm in part; but, where the rights of one party are dependent in any manner upon those of another, it will treat the judgment as an entirety, and, where a reversal is required as to one, it will reverse the judgment as a whole.”
Following this case and the case of Reeves & Lester v. McCracken, 103 Tex. 416 , 128 S. W. 895 , our appellate courts have held with some consistency that, where the judgment is not severable, or where a reversal adversely affects the rights of a party not appealing, or where justice demands, the appellate court may, in reversing a judgment for a party who appeals, reverse the case as to those who do< not áppeal from the judgment of the trial court. 3 Tex. Jur. §§ 814, 815; Valee v. Joiner (Tex. Com. App.) 44 S.W.(2d) 983 ; Lipshitz v. Lindsay National Bank (Fort Worth Civ. App.) 33 S.W.(2d) 874 (writ refused); Mergenthaler Linotype Co. v. McClure (Tex. Civ. App.) 9 S.W.(2d) 198 ; Id. (Tex. Com. App.) 16 S.W.(2d) 280 ; Fidelity Oil Co. v. Swinney (Tex. Civ. App.) 254 S. W. 137 . There are many other cases to the same effect, in none of which were the rights of the nonappealing party so strong as are the rights of appellee in this case.
We do not mean to say that the ¿uthor-ities uniformly support the above view, for there is ample authority for the contrary position, some of which are cited by the First National Bank in Brownwood in opposition to the motion. Such a case is Colorado & Southern Ry. Co. v. Hamm, 47 Tex. Civ. App. 196 , 103 S. W. 1125 . The contrary view is also well expressed in the majority opinion of the Eastland Court of Civil Appeals in Farmers’ National Bank v. Dublin National Bank, 55 S.W.(2d) 567 . In a dissenting opinion, however, Chief Justice Hickman takes the position that an appellate court has the authority to protect the rights of a nonap-pealing party where those rights arise solely from the disposition which the court makes of the case, and that it may, accordingly, reverse the case generally in order to do justice to a nonappealing party. An examination of the docket of the. Supreme Court discloses that an application for a writ of *1090 error has been granted in that case with the notation, “We are inclined to agree with the dissenting opinion.”
Since the judgment in favor of the bank was grounded solely on the judgment against appellant, we hold that Mrs. Johnson was not required to assume the anomalous position of objecting to and appealing from a judgment which gave her the exact relief which she was asking. We do not believe that an appellate court is powerless to protect the rights of a nonappealing party whose rights have been adversely affected by the disposition which it makes of the case.
The motion for rehearing is granted, the judgment in favor of First National Bank in Brownwood is reversed, and the cause reversed generally for a new trial as between all the parties thereto.