Browne v. Bear, Stearns & Co., Inc.

• Decision Date: 12 January 1989
• Docket Number: No. 05-88-00854-CV,05-88-00854-CV
• Citation: 766 S.W.2d 823
• Parties: J. Wade BROWNE, Appellant, v. BEAR, STEARNS & CO., INC., and Hillel A. Feinberg, Appellees.
• Court: Texas Court of Appeals

Page 823

766 S.W.2d 823

J. Wade BROWNE, Appellant, v. BEAR, STEARNS & CO., INC., and Hillel A. Feinberg, Appellees.

No. 05-88-00854-CV.

Court of Appeals of Texas Dallas.

Jan. 12, 1989.

Rehearing Denied Feb. 13, 1989.

Ralph C. Jones, Dallas, for appellant.

Mary L. O'Connor, Dallas, for appellees.

Before DEVANY, ¹ McCLUNG and LAGARDE, JJ.

McCLUNG, Justice.

Appellant brought an action in the 160th Judicial District Court of Dallas County for defamation, tortious interference with contract, and negligent and wrongful garnishment or taking of wages. Appellees filed a Motion to Dismiss, or in the alternative, to Compel Arbitration or Stay Proceedings Pending Arbitration and Original Answer and Plea in Abatement. In response, appellant filed an Amended First Petition which prayed for a temporary restraining order and permanent injunction seeking to prevent appellee from taking the claims to arbitration before the New York Stock Exchange. At an evidentiary hearing both appellees' alternative motions and plea in abatement and appellant's application for a temporary injunction were heard by the court. The court entered an Order Abating Case and denied appellant's requested injunctive relief. Appellant, in six points of error, appeals this order. We dismiss this appeal for want of jurisdiction.

It is a general rule that appeals may be taken only from a final judgment. There are a few well-known exceptions in which it is expressly provided by statute that appeals may be taken from interlocutory orders. Byer v. Dallas Power & Light Co., 290 S.W.2d 948, 950 (Tex.Civ.App.--Dallas 1956, no writ); Prodeco Exploration, Inc. v. Ware, 684 S.W.2d 199 (Tex.App.--Houston 1984, no writ). The Texas Civil Practice and Remedies Code at section 51.014 provides that a person may appeal from an interlocutory order of a district court that: (1) appoints a receiver or trustee; (2) overrules a motion to vacate an order that appoints a receiver or trustee; (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure; or (4) grants or refuses a temporary injunction or overrules a motion to dissolve a temporary injunction as provided by Chapter 65. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014 (Vernon Supp.1989).

Appellant urges that we have jurisdiction to consider the propriety of the failure to grant his petition for a temporary injunction since such orders are reviewable by statute. It is, however, well settled in this State that an appeal from an interlocutory order granting or refusing a temporary injunction may not be used as a vehicle for carrying other non-appealable interlocutory orders and judgments to the appellate court. City of Arlington v. Texas Electric Service Co., 540 S.W.2d 580, 582 (Tex.Civ.App.--Fort Worth 1976, writ ref'd n.r.e.). Although appellant styled his pleading as a request for a temporary injunction it was directed to respond to appellee's plea in abatement. Appellant was attempting to enjoin the appellee from abating the case and taking the claims to arbitration before the New York Stock Exchange.

It has been consistently held that the overruling of a plea in abatement is purely interlocutory and is therefore not appealable. Johnson v. Avery, 414 S.W.2d 441, 443 (Tex.1966). The rule to be applied on sustaining a plea in abatement is set out in Dyches v. Ellis, 199 S.W.2d 694 (Tex.Civ.App.--Austin 1947, no writ) and followed in Herbert v. Shrake, 492 S.W.2d 605, 606 (Tex.Civ.App.--Houston [1st Dist] 1973, no writ) as follows:

It is true, as appellant urges, that a plea in...