Williams v. MacK Financial Corporation

505 S.W.2d 316

• Court: Court of Appeals of Texas
• Decided: January 17, 1974
• Docket: 745
• Status: Published

Opinions

DUNAGAN, Chief Justice.

Suit was instituted by Mack Financial Corporation against Kelley Williams to foreclose its security interest in a truck purchased by Kelley Williams. Williams filed a cross-action against Mack Financial Corporation and brought in Mack Trucks, Inc., and Transport Indemnity Company as third party defendants. Appellant, Williams, alleged that all three parties conspired against him and he sought damages for fraud, breach of contract and outrageous conduct. The cause of action alleged by Williams was a joint and several cause of action against Mack Trucks, Inc., Mack Financial Corporation and Transport Indemnity Company.

The trial court granted a motion for summary judgment filed by appellee, Mack Financial Corporation, decreeing that it recover its damages incurred in foreclosure. Further, it was ordered that Williams take nothing on his claim against cross-defendant Mack Financial Corporation and third party defendant Mack Trucks, Inc. The order made no mention of the other third party defendant — Transport Indemnity Corporation. Appellant is now requesting we reverse the summary judgment granted below.

The summary judgment entered by the trial court disposes of all parties except Transport Indemnity Company. The transcript does not show an order of severance; consequently, it is not a final judgment.

Therefore, not all of the parties in the case have been disposed of. It is firmly entrenched in Texas jurisprudence that a summary judgment which does not dispose of all parties and all issues in a pending suit is interlocutory and not ap-pealable unless a severance is granted as to that phase of the case omitted in the judgment. Lopez v. Royal Indemnity Co., 482 S.W.2d 703 (Tex.Civ.App., San Antonio, 1972, n.w.h.) ; Clayton Mfg. Co. v. Flake Uniform & Linen Service, Inc., 451 S.W.2d 934 (Tex.Civ.App., Fort Worth, 1970, n.w.h.) ; Plaster v. Texas City, 380 S.W.2d 137 (Tex.Civ.App., Tyler, 1964, n.w.h.); Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959); McCormack v. Morgan, 306 S.W.2d 439 (Tex.Civ.App., Dallas, 1957, n.w.h.). Since the record does not show an order of severance, we do not have the power to review the partial summary judgment granted in this cause. This court being without jurisdiction, it becomes our duty to dismiss the appeal on our own motion. Plaster v. Texas City, supra; Miller v. Esunas, 401 S.W.2d 150 (Tex.Civ.App., Tyler, 1966, writ ref’d n.r.e.).

The appeal is dismissed for want of jurisdiction.