Bender v. City of Abilene

Court of Appeals of Texas

Bender v. City of Abilene

241 S.W.2d 770, 1951 Tex. App. LEXIS 2213

CourtCourt of Appeals of Texas

DecidedJune 15, 1951

DocketNo. 2885

StatusPublished

This text of 241 S.W.2d 770 (Bender v. City of Abilene) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bender v. City of Abilene, 241 S.W.2d 770, 1951 Tex. App. LEXIS 2213 (Tex. Ct. App. 1951).

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Opinion

COLLINGS, Justice.

This suit was brought on December 9, 1950, by appellant, Yvonne Bender, against The City of Abilene for alleged personal injuries resulting from negligence on the part of the City in failing to keep a proper lid or cover in place on a water meter box. On January 23, 1951, the trial court, at the request of appellant’s attorney, entered an interlocutory default judgment in favor of Yvonne Bender and against the City of Abilene, which recited that the City, although duly served with process, failed to answer, but wholly made default.

On February 26, 1951, during an extension of the same term of court, the trial judge, without notice to appellant, entered an order vacating and setting aside such default judgment. The order recited that the court was of the opinion that justice would be better served by reinstating the cause and having a trial on the merits. Yvonne Bender has appealed from such order.

The order appealed from is not a final judgment. It did not dispose of the issues of the law suit, but merely set aside an interlocutory default judgment entered in appellant’s favor at an earlier date in the same term. Since the order was interlocutory and not a final judgment, no appeal lies therefrom to this court. Art. 2249, Vernon’s Revised Texas Civil Statutes; Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280; Texas Farm Bureau Cotton Ass’n v. Lennox, Tex.Civ.App., 296 S.W. 325; Engler v. Hatton, Tex.Civ.App., 296 S.W. 328; Caldwell v. Halper & Baron, Tex.Civ.App., 298 S.W. 314; Clay Lumber Co. v. Patterson, Tex.Civ.App., 28 S.W.2d 825; Wise v. Lewis, Tex.Com.App., 23 S.W.2d 299; Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022; Gann v. Hopkins, Judge, Tex.Civ.App., 119 S.W.2d 110; Barton v. Montex Corp., Tex.Civ.App., 295 S.W. 950; 3 Tex.Jur., 125.

For the reasons stated, the appeal is dismissed.

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COLLINGS, Justice.

This suit was brought on December 9, 1950, by appellant, Yvonne Bender, against The City of Abilene for alleged personal injuries resulting from negligence on the part of the City in failing to keep a proper lid or cover in place on a water meter box. On January 23, 1951, the trial court, at the request of appellant’s attorney, entered an interlocutory default judgment in favor of Yvonne Bender and against the City of Abilene, which recited that the City, although duly served with process, failed to answer, but wholly made default.

On February 26, 1951, during an extension of the same term of court, the trial judge, without notice to appellant, entered an order vacating and setting aside such default judgment. The order recited that the court was of the opinion that justice would be better served by reinstating the cause and having a trial on the merits. Yvonne Bender has appealed from such order.

The order appealed from is not a final judgment. It did not dispose of the issues of the law suit, but merely set aside an interlocutory default judgment entered in appellant’s favor at an earlier date in the same term. Since the order was interlocutory and not a final judgment, no appeal lies therefrom to this court. Art. 2249, Vernon’s Revised Texas Civil Statutes; Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280; Texas Farm Bureau Cotton Ass’n v. Lennox, Tex.Civ.App., 296 S.W. 325; Engler v. Hatton, Tex.Civ.App., 296 S.W. 328; Caldwell v. Halper & Baron, Tex.Civ.App., 298 S.W. 314; Clay Lumber Co. v. Patterson, Tex.Civ.App., 28 S.W.2d 825; Wise v. Lewis, Tex.Com.App., 23 S.W.2d 299; Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022; Gann v. Hopkins, Judge, Tex.Civ.App., 119 S.W.2d 110; Barton v. Montex Corp., Tex.Civ.App., 295 S.W. 950; 3 Tex.Jur., 125.

For the reasons stated, the appeal is dismissed.

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