Worthey v. First State Bank

549 S.W.2d 450, 1977 Tex. App. LEXIS 3163

• Court: Court of Appeals of Texas
• Decided: May 31, 1977
• Docket: No. 5747
• Status: Published

Opinion

OPINION

McDONALD, Chief Justice.

Appellee Bank on April 11, 1977 filed its motion to affirm on certificate a summary judgment rendered by the trial court January 7,1977. Attached was certified copy of the judgment (which appeared to be a final judgment on its face), and certified copy of the cost bond for appeal. The time for appellant to file transcript had expired by some 35 days. Thereafter, April 28, appel-lee filed in this court a transcript in the case.

This court Affirmed on Certificate on May 5, 1977.

Appellant Worthey has filed motion for rehearing pointing up that the January 7, 1977 judgment is not a final judgment because appellant had filed a cross-action against a codefendant; that such judgment did not dispose of the cross-action (thus not disposing of all parties and issues); and that no order of severance was entered by the trial court. Appellant prayed the Af-firmance on Certificate be set aside.

Appellant’s motion for rehearing granted. The transcript reflects no disposition of appellant’s cross-action, and no order of severance; thus the January 7, summary judgment against appellant was interlocutory, not final, and not appealable. We were without authority to affirm the judgment on certificate. Lucchese v. Specia, CCA (San Antonio) Er.Ref. 281 S.W.2d 725.

Affirmance on Certificate set aside, and attempted appeal is dismissed at cost of appellant.