Flato Brothers, Inc. v. McKinney

GREEN, Chief Justice. Appellant attempts to appeal from an order signed by the 94th District Court of Nueces County, Texas, setting aside a default judgment theretofore rendered by the court in this cause, and granting a new trial. Since such order is interlocutory, and not a-final judgment, this Court is without power to review it. Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Palmer v. D.O.K.K. Benevolent and Insurance Ass’n, 160 Tex. 513, 334 S.W.2d 149; Stocks v. Baptist General Convention of Texas, Tex. Civ. App., 362 S.W.2d 196; Appellate Procedure in Texas, § 2.5. See also Spikes v. Smith, Tex.Civ.App., 386 S.W.2d 346. Appellant contends that the trial court abused its discretion in granting the motion for new trial, and that, notwithstanding the interlocutory nature of the order, this Court has the power on this ap *958 peal to pass on such question of abuse of discretion. This would necessarily require a consideration of the merits of the appeal. Since we have no jurisdiction over this attempted appeal, any consideration of the issue raised by appellant would constitute fundamental error on our part. McCauley v. Consolidated Underwriters, supra. Appeal dismissed.