Cass v. Estate of McFarland

564 S.W.2d 107

• Court: Court of Appeals of Texas
• Decided: March 22, 1978
• Docket: 6654
• Status: Published

Opinions

OPINION

WARD, Justice.

Plaintiffs are the surviving wife, child, and parents of Armando Cass-Ruiz, and they sue for his death which occurred when a private plane crashed in Mexico. Defendants, the “Estate of Robert E. McFarland and Marsha Lynn McFarland,” upon their motion, were dismissed as Defendants in this lawsuit. Interesting briefs and arguments have been presented concerning the application of Tex.Rev.Civ.Stat.Ann. art. 4678, as amended effective September 1, 1975, but, alas, to no avail as the resolution of the threshold question of finality of the judgment below is adverse to our jurisdiction and we dismiss the appeal.

In the Plaintiffs’ first amended petition, there is designated an “Alternative Pleading” wherein it is stated that “by way of alternative pleading only,” the same Plaintiffs assert a cause of action and join as a party Defendant Gulf Insurance Company, and allege what they designate as a cause of action for breach of a written contract. Gulf Insurance Company thereafter filed its answer by its attorneys. Next, a motion to dismiss was filed by the “Estate of Robert E. McFarland and Marsha Lynn McFarland” by their respective attorneys asking that the trial Court dismiss the action against those two named Defendants. Thereafter, on March 16, 1977, this motion of dismissal was acted on and an order was entered that the Defendants, “the ESTATE OF ROBERT E. McFARLAND and MARCIA LYNN McFARLAND be, and are hereby dismissed as Defendants in this lawsuit.” It is from this order that the Plaintiffs have attempted to appeal, although their contract action against the Gulf Insurance Company still remains on file.

An appealable judgment is one that disposes of all parties and issues in the case, and a judgment which does not dispose of all the issues and all the parties is not final, and no appeal can be prosecuted therefrom. In Tellez v. Tellez, 531 S.W.2d 368 (Tex.Civ.App. — El Paso 1975, no writ), we had occasion to speak of this recurring problem resulting from poorly drafted judgments and how the Supreme Court, by use of a presumption of finality for appellate purposes only, has provided a way for review of what otherwise would be interlocutory judgments. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). That rule is to the effect that an appellate Court may presume that unmentioned issues or parties have been disposed of when the judgment is not intrinsically interlocutory in character, is entered and rendered in a case regularly set for a trial on the merits, and when no order for separate trial of issues has been entered. Contrary to the facts of the Aldridge case and the cases such as Tellez v. Tellez, supra, we do not now have a judgment entered in a case regularly set for a conventional trial on the merits. As noted in the order of dismissal, the Court was only hearing the motion for dismissal filed by the Defendants, the “Estate of Robert E. McFarland and Marsha Lynn McFarland,” and acting on that motion, they were dismissed as Defendants in this lawsuit. Following the reasoning contained in Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377 (1941), we cannot indulge in the presumption because if the trial Court intended to retain the Plaintiffs’ action against Gulf Insurance Company for further consideration, it would have had to enter the very judgment which it did enter and upon which an appeal is now attempted. There is no way that the presumption of finality of the judgment can be indulged in this case.

Because all of the issues were not disposed of and no order of severance appears in the record, we hold that the judgment is interlocutory and not appealable. The appeal is dismissed because we do not have jurisdiction.