Speer v. Stover

• Decision Date: 28 May 1986
• Docket Number: No. 04-83-00067-CV,04-83-00067-CV
• Citation: 711 S.W.2d 730
• Parties: Joseph L. SPEER, and Wife, Donna Stover Speer, Appellants, v. James Dewey STOVER, Individually and as Community Survivor in the Estate of Melba Imogene Stover, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 730

711 S.W.2d 730

Joseph L. SPEER, and Wife, Donna Stover Speer, Appellants, v. James Dewey STOVER, Individually and as Community Survivor

in the Estate of Melba Imogene Stover, Deceased, Appellee.

No. 04-83-00067-CV.

Court of Appeals of Texas,

San Antonio.

May 28, 1986.

Joseph Chacon, Jr., San Antonio, for appellants.

Robert F. Nelson, San Antonio, for appellee.

Before CADENA, C.J., and CANTU and REEVES, JJ.

PER CURIAM.

On October 10, 1984, this court dismissed the instant appeal for want of jurisdiction delineating its reasons in an unpublished opinion. That opinion in its entirety read as follows:

Joseph and Donna Speer appeal a district court order granting James Stover's plea in abatement and ordering the cause held suspended on the docket of the court until further orders. We dismiss the appeal for want of jurisdiction.

The Speers brought suit in district court seeking specific performance of a contract in which Stover allegedly was to convey his community half of a house as well as his deceased wife's community half, and alternatively alleging fraud and seeking actual and exemplary damages of at least $140,000.00 and reasonable attorney's fees. An application for letters of administration was filed by Stover's son in a Bexar County court at law sitting in matters probate, which Stover contested. During the pendency of the district court suit for specific performance, the county court at law appointed Stover administrator of his wife's estate.

Stover filed a plea in abatement in which he contends, in essence, that the district court should refrain from exercising its jurisdiction because the county court at law sitting in probate is the An appeal from an order sustaining a plea in abatement which does not dismiss the suit is a non-appealable interlocutory order. We have no jurisdiction to entertain such an appeal until the trial court orders a dismissal. Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438, 441-42 (1944); Bills v. Braswell, 534 S.W.2d 434, 435 (Tex.Civ.App.--Texarkana 1976, mand. overr.; Power v. Landram, 424 S.W.2d 24, 26 (Tex.Civ.App.--Houston [1st Dist.] 1968, no writ). We, therefore, dismiss the appeal for want of jurisdiction.

                proper court to hear the matter as one incident to an estate.  The district court sustained Stover's plea in abatement, stating, 'IT IS, THEREFORE, ORDERED that the Plea in Abatement be, and is hereby sustained, and this cause is abated until further Orders of this Court.'   No dismissal of the cause was ordered
                

On February 6, 1985, the Supreme Court of Texas, in a per curiam opinion issued pursuant to TEX.R.CIV.P. 483, granted application for writ of error and without hearing oral argument reversed the judgment of this court and remanded the cause for consideration on the merits of the appeal. See Joseph L. Speer Et Ux v. James Dewey Stover, Individually and as Community Survivor in the Estate of Melba Imogene Stover, Deceased, 685 S.W.2d 22 (Tex.1985).

The judgment of the Supreme Court accompanying the cause on remand to this court recites:

It is the opinion of the court that there is error in the judgment of the court of appeals which held Stover's misnomered plea in abatement was interlocutory and dismissed the appeal for want of jurisdiction.

We are told in the opinion issued by the court that Stover's plea titled "plea in abatement" was actually a "plea to the jurisdiction" and that thus being misnomered this court was bound to treat it for what it was without reference to the label attached.

This, of course, did not escape us on original submission. However, inasmuch as the purported appeal was from the judgment entered and not from the pleading filed, our decision to hold the judgment of the court interlocutory was based upon what we believed to be settled law.

The opinion of the Supreme Court further suggests that we should have looked to the findings of facts and conclusions of law to determine the meaning of the trial court's clear and express order holding that the "cause is abated until further orders of this court."

If plain and unambiguous, a judgment is not to be interpreted in the light of subsequent or prior statements or acts of the court evincing judicial intention when the judgment was rendered, Austin v. Conaway, 283 S.W. 189 (Tex.Civ.App.--Eastland 1926, no writ), since the controlling intention of the court is that expressed on the face of the judgment and not an intention that may be deduced from the evidence which the court had before it. Harrison v. Manvel Oil Co., 142 Tex. 669, 180 S.W.2d 909 (1944).

The order abating the matter is shown to have been entered on November 16, 1982, while the findings of fact and conclusions of law were not filed until December 21, 1982.

Stover's misnomered plea in abatement unequivocably requests the trial court to abate and dismiss the cause for jurisdictional reasons. The Speers' "motion for rehearing of order sustaining plea in abatement" clearly recognizes the trial court's abatement of the cause but never complains of a failure to dismiss. Their appeal bond, however, recognizes the prerequisite of a dismissal for appellate purposes and recites that the trial court has dismissed their cause of action incident to the granting of the abatement. The recitation in the appeal bond is, however, without justification in view of the clear language in the judgment.

Even a subsequent order following a hearing on the Speers' "motion for rehearing While we may be in agreement with the Supreme Court's views that the plea in abatement was in fact a plea to the jurisdiction, we find nothing in the judgment of the court mandating a conclusion that the court's order is likewise a misnomered order. And even if we should agree that the trial court intended to sustain Stover's misnomered plea to the jurisdiction, it does not follow that this court is authorized to enter the dismissal the trial court may have erroneously but intentionally denied in order to confer jurisdiction upon this court.

of the order sustaining a plea in abatement" fails to recite a dismissal of the cause but merely affirms the court's prior order of abatement.

Where the terms of the judgment clearly show what was finally determined by the court there is no reason to resort to the pleadings or other parts of the record. Bankers Home Building & Loan Association v. Wyatt, 139 Tex. 173, 162 S.W.2d 694 (1942).

It has been said that a judgment is something more than the findings of fact in the controversy, or even a recommendation as to the future course of the parties litigant; that it is the solemn sentence of law pronounced by the court on the facts found. A judgment is the final consideration and determination of a court of competent jurisdiction on the matters submitted to it. But the opinions or reasons given by the judge of the court constitute no part of the judgment. See Davis v. Hemphill, 243 S.W. 691 (Tex.Civ.App.--Fort Worth 1922, no writ).

It is further well established that judgments are classified with reference to whether they put an end to the controversy, as final or interlocutory and that a judgment or decree that leaves for the court some further action in disposing of the parties and their rights is interlocutory. Kinney v. Tri State Telephone Co., 222 S.W. 227 (Tex.Comm'n App.1920, holding approved).

An interlocutory judgment does not dispose of the case but leaves it for further action by the court in order to settle and determine the entire controversy. Witt v. Witt, 205 S.W.2d 612 (Tex.Civ.App.--Fort Worth 1947, no writ).

In contrast, a final judgment is one that awards judicial consequences that the law attaches to facts and determines controversies between the parties over subject matter included in the pleadings, thus terminating litigation to the extent that nothing remains to be done but execute the judgment. Cleghorn v. Chicago, Rock Island & Pacific Railroad Co., 228 S.W.2d 967 (Tex.Civ.App.--Amarillo 1949, no writ). See also Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945 (1960).

The general rule in this state seems to be settled that appeals lie only from such interlocutory orders as are specially made appealable by statute. Thus, where a court sustains a plea to the jurisdiction or a plea in abatement which results in a dismissal of the plaintiff's case, such an order is a final one and is controlled by the rule which permits appeals from interlocutory orders only by statutory provision. Witt v. Witt, supra.

However, an order overruling a plea in abatement and refusing to dismiss a cause in response to such plea is an unappealable interlocutory order, Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385 (1945), as is an order sustaining a plea in abatement which is not dismissed. General Motors Acceptance Corp. v. Matson, 325 S.W.2d 909 (Tex.Civ.App.--Austin 1959, no writ); Hicks v. Southwestern Settlement & Development Corp., 181 S.W.2d 982 (Tex.Civ.App.--Eastland 1944, no writ); Beacon Oil & Refining Co. v. State, 56 S.W.2d 519 (Tex.Civ.App.--Austin 1933, no writ).

In determining whether a judgment is final, the appellate court is ordinarily limited to what the trial court states in the judgment, and what might or could have been done is not in issue. Culicchia v. Taormina, 332 S.W.2d 803 (Tex.Civ.App.--San Antonio 1960, no writ).

It is also well settled that a judgment is not final and appealable where the court expressly retains the cause on the docket and holds the judgment open for the disposition of certain reserved matters. E.L. Wilson Hardware Co. v. Duff, 83 S.W. 907 (Tex.Civ.App.1904, writ dism'd w.o.j.), 98 Tex. 467, 85 S.W. 786; McCormick v. Hines, 503 S.W.2d 333 (Tex.Civ.App.--Amarillo 1973, no writ).

The same applies where the judgment fails to recite that the case was dismissed. Cantrell v. City of Dallas, 350 S.W.2d 358 (Tex.Civ.App.--Dallas 1961, no writ); Endres v. Hawkins, 348 S.W.2d 547 (Tex.Civ.App.--Fort Worth 1961, no writ); Mueller v. Banks, 317 S.W.2d 256...