Dickson and Associates v. Brady, 16566

• Decision Date: 13 November 1975
• Docket Number: No. 16566,16566
• Citation: 530 S.W.2d 886
• Court: Texas Court of Appeals
• Parties: DICKSON & ASSOCIATES, Appellant, v. James C. BRADY, Appellee. (1st Dist.)

Page 886

530 S.W.2d 886

DICKSON & ASSOCIATES, Appellant, v. James C. BRADY, Appellee.

No. 16566.

Court of Civil Appeals of Texas Houston (1st Dist.).

Nov. 13, 1975.

William Dickson, Houston, for appellant.

Presley E. Werlein, Jr., Houston, for appellee.

EVANS, Justice.

This suit was brought by appellant, Dickson & Associates, against appellee, James C Brady, to recover attorney's fees for legal services allegedly rendered to appellee's former wife in a prior divorce action. Appellee answered and also filed a counterclaim and cross-action. Appellee subsequently filed a motion for summary judgment which the trial court granted, entering an interlocutory judgment that appellant take nothing. This order did not dispose of appellee's counterclaim and cross-action, but approximately one year later the trial court dismissed the entire cause for want of prosecution.

Appellee has filed motion to dismiss for want of jurisdiction, contending that since no notice of appeal was given with respect to the dismissal order, this court has no jurisdiction over the appeal. We have concluded this motion must be sustained and the cause dismissed.

The interlocutory summary judgment was granted on April 5, 1974. Appellant filed a motion for new trial which was overruled by order dated April 29, 1974, which order contained a notice of appeal from the summary judgment. On April 22, 1975, appellant filed an appeal bond which recited the entry of the summary judgment, the overruling of the motion for new trial and the rendition of an order 'on the 7th day of April, 1975, dismissing for want of prosecution the counterclaim filed by James C. Brady against William Dickson et al.' The docket sheet in said cause reflects that a motion to sever was denied on June 17, 1974.

A general order bearing the hearing:

'DISMISSAL DOCKET

'189th JUDICIAL DISTRICT COURT'

signed on May 1, 1975, recites the following:

'BE IT REMEMBERED, that on the 7th day of April, 1975, the following styled and numbered cases, having heretofore been set down and on that called for trial, and no sufficient answer having been made in the protest thereof, the said cases listed below are hereby DISMISSED FOR WANT OF PROSECUTION and each party is to pay his own costs.'

Apparently attached to this order was a list of cases entitled 'Selection of Cases to be Dismissed for Want of Prosecution Effective April 17, 1975, Court No. 189' which includes, among others, the style and number of this cause. No notice of appeal was contained in the order of dismissal nor was such notice separately filed in the cause as required by Rule 353, T.R.C.P. Unless the notice of appeal filed earlier in the case with respect to the interlocutory summary judgment suffices as proper notice under the rules, this court has no jurisdiction over this appeal.

Appellant admits that the order of dismissal entered May 1, 1975, appears to dismiss the entire case but argues that the trial court could not dismiss all the causes of action in this cause due to the fact that it had previously entered the interlocutory summary judgment as to appellant's cause of action.

It is the well settled rule in Texas, with certain statutory exceptions not here involved, that an appeal will lie only from a final judgment, and that a judgment in order to be final must dispose of all parties and of all issues involved in the suit. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966). Prior to the time a judgment becomes final, the court has plenary power over it and may, on its own motion or on motion of a party, vacate, modify, correct or reform it, according to the justice of the case. Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281 (1958); Prince v. Peurifoy, 396 S.W.2d 913, 916 (Tex.Civ.App.--Dallas, 1965, no writ). The entry of a final judgment inconsistent in its terms with a prior interlocutory judgment operates to set aside the interlocutory judgment as a necessary result of the applicaton of the rule that only one final judgment may be entered in a case. Dickerson v. Mack Financial Corp., 452 S.W.2d 552, 555 (Tex.Civ.App.--Houston (1st), 1969, writ ref'd n.r.e.). The fact that an interlocutory judgment was rendered has no limiting effect on the final judgment actually entered. Texas Crushed Stone Co. v. Weeks, 390 S.W.2d 846, 849 (Tex.Civ.App.--Austin, 1965, writ ref'd n.r.e.).

Since the trial court did not sever the main cause from the rest of the case, the interlocutory summary judgment did not become a final appealable judgment until it was merged into the final judgment rendered on May 1, 1975, disposing of the entire case. Webb v. Jorns, 488 S.W.2d 407 (Tex.Sup.1972); H. B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192 (Tex.Sup.1963); McDonald, Texas Civil Practice, Vol. 4, p. 44. The time for appeal started to run from the entry of the final judgment. 364 S.W.2d 192, 193.

In Thibodeaux the order granting the interlocutory summary judgment contained a notice of appeal. A subsequent order dismissing the cause as to another defendant did not refer to the interlocutory order, did not contain a notice of appeal and no such notice was thereafter given. The Court of Civil Appeals dismissed the appeal stating that the judgment was not final and appealable. The cause was remanded by the Texas Supreme Court and upon such remand, it was held that when the partial summary...