Gallaher v. City Transp. Co. of Dallas
| Decision Date | 25 November 1953 |
| Docket Number | No. 4967,4967 |
| Parties | GALLAHER v. CITY TRANSP. CO. OF DALLAS. |
| Court | Texas Court of Appeals |
Ben T. Warder, Jr., Joe Hill Jones, Carter, Gallagher, Roberts & Jones, Dallas, for appellant.
W. D. White, Thomas R. Hartnett, III, Turner, White, Atwood, McLane & Francis, Dallas, for appellee.
Willie Gallaher, a feme sole, sued for personal injuries allegedly sustained when struck by a taxicab owned and operated by North Dallas Taxi Company. She will be hereafter designated as appellant.
Appellant sued two defendants, namely, J. L. Clemmons, d/b/a North Dallas Taxi Company, and City Transportation Company of Dallas, and alleged that each of the defendants was jointly and severally liable to appellant. The motion for summary judgment of appellee City Transportation Company of Dallas was sustained and an order was entered dismissing City Transportation Company of Dallas from the case. The case of appellant against J. L. Clemmons d/b/a North Dallas Taxi Company is still pending and no judgment has been entered by the District Court adjudicating the rights between appellant and J. L. Clemmons d/b/a North Dallas Taxi Company.
Appellee has filed its motion to dismiss this appeal from the action of the court in granting the motion of appellee for summary judgment dismissing it from the lawsuit.
It is elementary, of course, that a judgment to be final must dispose of all issues and all parties. Miller v. Farmers' State Bank & Trust Co., Tex.Civ.App., 241 S.W. 540; Wootters v. Kauffman, 67 Tex. 488, 3 S.W. 465; Lubell v. Sutton, Tex.Civ.App., 164 S.W.2d 41, (wr. ref.).
Here we have a lawsuit filed by appellant against two defendants. The case was styled and numbered. Appellant charged defendants on a basis of joint and several liability. The trial court by summary judgment dismissed the appellee. The case as originally styled and numbered is on the docket untried as regards the other defendant. It seems, therefore, that the situation here does not meet the test defining a final judgment. It is possible that the cause against the two defendants is severable, and that appellant might sue the North Dallas Taxi Company independently of the appellee, but there has been no severance, it is still one lawsuit on the trial docket, and we are therefore constrained to hold that there has been no final judgment disposing of all the parties. The appeal must therefore be dismissed. We have considered the various cases cited by both sides and have not found any directly on all fours with the instant case. We realize that it is possible that on appeal of entire case the trial court's ruling might be reversed as to appellee after the case against the other defendant has been heard by the trial court, which would leave appellant's case against appellee still untried as to the merits, while her case against the other defendant has been tried. But such situation results from appellee's action in electing to ask for summary judgment rather than pursuing other...
To continue reading
Request your trial
-
Prince v. Peurifoy
...439; Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173; Dunn v. Tillman, Tex.Civ.App., 271 S.W.2d 702; Gallaher v. City Transportation Co. of Dallas, Tex.Civ.App., 262 S.W.2d 807 (writ refused). In this case relators do not claim that there has been a severance of the cross-action from the ......
-
Gaitz v. Markman
...v. Wheeler, 420 S.W.2d 635, 637 (Tex.Civ.App.-Houston (14th Dist.) 1967, writ ref'd n.r.e.); Gallaher v. City Transp. Co. of Dallas, 262 S.W.2d 807 (Tex.Civ.App.-El Paso 1953, writ ref'd). Recently in Webb v. Jorns, 473 S.W.2d 328, 331 (Tex.Civ.App.-Fort Worth 1971, writ granted) the Fort W......
-
Nelon v. Thomas
...against Munoz is severed, dismissed or adjudicated. 'There being no final judgment, the appeal is dismissed. Gallaher v. City Transport Co. of Dallas, Tex.Civ.App., 262 S.W.2d 807, writ refused.' (Emphasis Furthermore, in the case at bar this is not an appeal from costs wherein a final judg......
-
Sears v. Mund Boilers, Inc., 7164
...here involved in 1 Pan- American Petroleum Corp. v. Texas-Pacific Coal & Oil Co., Tex., 324 S.W.2d 200, citing Gallaher v. City Transp. Co., Tex.Civ.App., 262 S.W.2d 807, wr. ref., and Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173, n. w. h., has held that a trial court order severing th......