Turner v. Marion County
| Decision Date | 29 March 1977 |
| Docket Number | No. 8467,8467 |
| Citation | 549 S.W.2d 254 |
| Parties | Emma TURNER, Individually and as next friend, Appellant, v. The COUNTY OF MARION, Appellee. |
| Court | Texas Court of Appeals |
Mary Bingham Edwards, Houston, for appellant.
Tony Hileman, Jefferson, for appellee.
Appellant seeks to appeal from an order of the trial court denying her motion for summary judgment.
Appellant filed this suit seeking damages for the alleged wrongful death of her husband, Ernest Turner. The petition alleged that Mr. Turner was employed by Marion County as an operator of a dirt moving tractor or "front end loader," and that while engaged in the scope of his employment and due to the negligence of the county, he was killed when the vehicle overturned and crushed him. The appellee answered by general denial. After some admissions had been secured pursuant to Tex.R.Civ.P. 169, appellant filed a motion for summary judgment, alleging that appellee had raised no defense, that no material issue of fact existed and that she was entitled to judgment as a matter of law. Appellee resisted the motion on the ground that appellant's petition stated no cause of action, and then filed its own motion for summary judgment. The trial court denied both motions.
An order denying summary judgment is purely interlocutory and is not appealable unless the case comes within the narrow factual situation presented in Tobin v. Garcia, 1 159 Tex. 58, 316 S.W.2d 396 (1958). See Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966); Haynes v. Dunn, 518 S.W.2d 880 (Tex.Civ.App. Waco 1975, no writ); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App. Austin 1974, writ ref'd n. r. e.); Garver v. First National Bank of Canadian, 406 S.W.2d 797 (Tex.Civ.App. Amarillo 1966, writ ref'd n. r. e.); Archer v. Skelly Oil Company, 314 S.W.2d 655 (Tex.Civ.App. Amarillo), writ ref'd n. r. e. per curiam, 159 Tex. 154, 317 S.W.2d 47 (1958); 4 McDonald's, Texas Civil Practice, Sec. 17.26.13, p. 183, and cases there cited; Annot., 15 A.L.R.3rd 927 (1967). Appellant recognizes the general rule but contends that her case is an exception because her claim is liquidated, and as both parties moved for summary judgment, the orders denying them had the effect of fully and finally disposing of all issues in the case. We do not agree. Appellant's claim is not a liquidated demand. Worley v. Smith, 26 Tex.Civ.App. 270, 63 S.W. 903 (1901, no writ). Even if her claim could be considered liquidated, the order denying her motion for summary judgment did not finally dispose of all the issues in the case. When a court denies a motion for summary judgment, it inferentially finds that there are one or more material disputed issues of fact and holds the case for trial on the merits. F. & T. Development Co. v. Morris, ...
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Williams v. Colthurst
...assign error to the trial court's judgment ultimately rendered following trial on the merits. See Turner v. County of Marion, 549 S.W.2d 254, 255 (Tex. Civ.App.-Texarkana 1977, writ dism'd). 4. The tenants have not challenged the sufficiency of the evidence supporting the jury's determinati......
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UPS v. Cengis Tasdemiroglu
...to assign error to the trial court's judgment ultimately rendered following trial on the merits. See Turner v. County of Marion, 549 S.W.2d 254, 255 (Tex. App.-Texarkana 1977, writ dism'd). UPS responds that it is appealing from a final judgment, not its motion for summary judgment.3 The qu......
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Wasson v. Stracener
...motion. Garcia v. City of Lubbock, 634 S.W.2d 776 (Tex.App.--Amarillo 1982, writ ref'd n.r.e.); Turner v. County of Marion, 549 S.W.2d 254 (Tex.Civ.App.--Texarkana 1977, writ dism'd); F. & T. Development Co. v. Morris, 248 S.W.2d 233 (Tex.Civ.App.--Fort Worth 1952, no writ). The principle s......
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Fillion v. David Silvers Co.
...found one or more material disputed issues of fact which prevented the summary judgment then sought. Turner v. County of Marion, 549 S.W.2d 254 (Tex.Civ.App.--Texarkana 1977, writ dism'd). The court's order overruling the motion was an interlocutory one from which an appeal is not permitted......