Estey Corp. v. St. Mary's University

458 S.W.2d 101, 1970 Tex. App. LEXIS 2091

• Court: Court of Appeals of Texas
• Decided: September 2, 1970
• Docket: No. 14935
• Status: Published

Opinion

BARROW, Chief Justice.

This is an appeal by Estey Corporation from an order sustaining the plea in abatement of St. Mary’s University and dismissing the original petition filed by Estey Corporation, but directing the parties to proceed to trial on the merits of the cross-action filed in said cause by St. Mary’s University against Estey Corporation and Continental Insurance Company. St. Mary’s University has filed its motion to dismiss this appeal, wherein it urges that the order entered herein is not a final judgment.

It is settled that, with certain exceptions not applicable here, an appeal may be prosecuted only from a final judgment; and that to be final, a judgment must dispose of all issues and parties in a case. North East Independent School Dist. v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966); Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959).

Here the judgment is intrinsically interlocutory in character in that the cross-action is specifically recognized and left untried and unadjudicated. Furthermore, there was no order for a severance of such Estey Corporation’s original petition is cause of action. The order of dismissal of interlocutory and no appeal may be prosecuted therefrom at this time. Hall v. City of Austin, 450 S.W.2d 836 (Tex.Sup.1970).

The appeal of Estey Corporation is dismissed.

CADENA, J., not participating.