No. 15502 | Tex. App. | May 15, 1959
This is an appeal from grant of summary judgment in favor of Sparkman-Brand, Inc., one of several defendants in her suit for damages allegedly resulting from the burial of the body of another in place of her deceased husband. Other defendants were American Airline Inc., and Robert Massie Funeral Home, Inc.; plaintiff asserting liability against all three defendants, jointly and severally as tort-feasors. As stated, Sparkman-Brand filed motion for summary judgment which, upon hearing,
Said motion to dismiss must be sustained. It is well settled that where a summary judgment in favor of one of several defendants does not dispose of or attempt to dispose of the suit as to the remaining defendants, the judgment is not appealable. Of the numerous cases in point Gallaher v. City Transportation Co. of Dallas, Tex.Civ.App., 262 S.W.2d 807" court="Tex. App." date_filed="1953-11-25" href="https://app.midpage.ai/document/gallaher-v-city-transp-co-of-dallas-1779309?utm_source=webapp" opinion_id="1779309">262 S.W.2d 807 (writ refused); and Dunn v. Tillman, Tex.Civ.App., 271 S.W.2d 702" court="Tex. App." date_filed="1954-10-20" href="https://app.midpage.ai/document/dunn-v-tillman-1570048?utm_source=webapp" opinion_id="1570048">271 S.W.2d 702 need only be mentioned. But see also Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173" court="Tex. App." date_filed="1955-05-11" href="https://app.midpage.ai/document/myers-v-smitherman-1777673?utm_source=webapp" opinion_id="1777673">279 S.W.2d 173; Minchen v. Murrah, Tex.Civ.App., 285 S.W.2d 372" court="Tex. App." date_filed="1955-11-23" href="https://app.midpage.ai/document/minchen-v-murrah-1635759?utm_source=webapp" opinion_id="1635759">285 S.W.2d 372, (writ refused) and McCormack v. Morgan, Tex.Civ.App., 306 S.W.2d 439" court="Tex. App." date_filed="1957-10-18" href="https://app.midpage.ai/document/mccormack-v-morgan-1527990?utm_source=webapp" opinion_id="1527990">306 S.W.2d 439.
Richards v. Smith, Tex.Civ.App., 239 S.W.2d 724" court="Tex. App." date_filed="1951-04-27" href="https://app.midpage.ai/document/richards-v-smith-1790127?utm_source=webapp" opinion_id="1790127">239 S.W.2d 724 and Riggs v. Bartlett, Tex.Civ.App. Dallas, 310 S.W.2d 690" court="Tex. App." date_filed="1957-12-13" href="https://app.midpage.ai/document/riggs-v-bartlett-2382640?utm_source=webapp" opinion_id="2382640">310 S.W.2d 690 are cited in support of the instant right of appeal. These cases will be examined. In the former, Richards, by bill of review had sued Smith and Gragg, and Smith’s motion for summary judgment had been sustained; decision being reserved on the suit of Richards against Gragg. It was held that such a judgment was final and appealable, the cause of action against Smith and Gragg being “severable and neither was a necessary party in a suit brought against the other”; (emphasis ours) finality of judgment thus resulting from an implied severance of the action against Smith. In the latter case, Riggs had sued Bartlett in damages for alleged breach of an oral contract; also Dallas Brick and Lumber Company for cancellation of deed on grounds of fraud and duress. An interlocutory judgment by default had been noted against Bartlett; Dallas Brick and Lumber Company filing cross-action and basing motion for summary judgment thereon, which was sustained, with consequent judgment for title and possession to the property involved. Plaintiff duly noted exception but appeal was not sought therefrom until much later, or when the damage claim against Bartlett was proven up. In the situation thus presented this court stated that “since the judgment rendered against F. E. Bartlett on February 26, 1957 was in an independent action severable from the action in which the summary judgment was rendered in favor of appellee Dallas Brick and Lumber Company on August 19, 1955, we hold that the latter was a final judgment as of August 19, 1955.” Motion of the Brick Company to dismiss appeal was accordingly sustained, citing Richards v. Smith, supra, as principal authority.
Manifestly the cases just discussed are not in point. Appellant here alleges a joint and several liability against all defendants as joint tort-feasors with no express severance of the action as against Sparkman-Brand in the summary judgment proceedings or basis for any severance by implication. The situation here is identical with that reflected in McCormack v. Morgan, supra [306 S.W.2d 440]; Chief Justice Dixon of this Court stating: “The petition alleges liability on the part of Espino, the driver of the car, on the ground of his negligence * * * and liability on the part of Morgan, owner of the car, on the ground of negligent entrustment of the vehicle to Espino. Espino, having been a party to the suit, was not disposed of in the judgment and therefore such judgment is interlocutory only and not appealable. The transcript does not show a motion to sever or an order of severance
Appeal dismissed.
NOTE:
It is the view of the writer that where, as here, a summary judgment is granted in favor of one of several defendants, an express or actual severance of cause is required before an appeal from such a judg
The soundness of Richards v. Smith has been questioned. See Myers v. Smitherman, Tex.Civ.App. San Antonio, 279 S.W.2d 173" court="Tex. App." date_filed="1955-05-11" href="https://app.midpage.ai/document/myers-v-smitherman-1777673?utm_source=webapp" opinion_id="1777673">279 S.W.2d 173, 174 from which I quote: “The cause of action against Munoz was severable from the causes of action asserted against Smitherman and Spillars, and the case of Richards v. Smith, Tex.Civ.App., 239 S.W.2d 724" court="Tex. App." date_filed="1951-04-27" href="https://app.midpage.ai/document/richards-v-smith-1790127?utm_source=webapp" opinion_id="1790127">239 S.W.2d 724, supports the proposition that the judgment here involved is appealable upon the theory of an implied severance of causes of action. This apparently is in accordance with the holding of the Circuit Court of Appeals under the federal rules of procedure. Biggins v. Oltmer, 7 Cir., 154 F.2d 214" court="7th Cir." date_filed="1946-03-01" href="https://app.midpage.ai/document/biggins-v-oltmer-iron-works-1478488?utm_source=webapp" opinion_id="1478488">154 F.2d 214; Zarati Steamship Co. v. Park Bridge Corporation, 2 Cir., 154 F.2d 377" court="2d Cir." date_filed="1946-03-20" href="https://app.midpage.ai/document/zarati-ss-co-v-park-bridge-corporation-1478501?utm_source=webapp" opinion_id="1478501">154 F.2d 377. However, the jurisdiction of this Court is controlled by constitutional and statutory provisions. Article 5, § 6, of the Constitution, Vernon’s Ann.St., Article 1819, Vernon’s Ann.Tex.Stats., and it is well settled that unless otherwise specially provided by law a judgment must be final in order to be appealable. Rule 166-A does not purport to effect a change in the rule stated but expressly sets out in subdivision (d) thereof, the procedures to be followed whenever the case is not fully adjudicated upon a motion for summary judgment. (2) In the present case, the judgment of the trial court made no disposition of Munoz nor the cause of action asserted against him, hence the judgment rendered upon the motions of Smitherman and Spillars is interlocutory in nature, Rule 301, and will remain such until plaintiffs’ claim against Munoz is severed, dismissed or adjudicated.” (emphasis mine).