Craig v. Rio Grande Electric Co-Operative

COLLINGS, Justice. Louie Craig brought suit in the District Court in Cause Number 2494 against Rio Grande Electric Co-operative and M-K-N Cattle Company and its agent and servant, Tom Cameron, for damages alleged to have been sustained by the plaintiff when he came in contact with electric power lines owned and operated by the electric company while constructing a tank on property belonging to said M-K-N Cattle Company. He alleged negligence on the part of the electric company in the construction and maintenance of its lines and alleged other specific and distinct acts and omissions as negligence on the part of the cattle company and Cameron, all alleged to have proximately caused the injuries and damages complained of. Defendants filed answers and each filed a motion for summary judgment. By order dated February 12, 1960, and signed March 14, 1960, the court sustained the motion for summary judgment of the Rio Grande Electric Co-operative but denied the motions for summary judgment filed by the cattle company and Cameron. By an order dated February 15, 1960, and signed March 16, 1960, Craig’s suit against the cattle company and Cameron was severed from his suit against the electric company and it was ordered that the portion of the suit against the cattle company et al. be numbered on the docket as 2494 — A. The order confirmed the previous order granting the electric company’s motion for summary judgment. Craig appealed from the summary judgment denying any recovery by him against the Rio Grande Electric Co-operative, but we are not now concerned with the determination of that appeal M-K-N Cattle Company and Tom Cameron have also filed separate appeal bonds and seek to appeal from the order refusing their motions for summary judgment against the plaintiff Louie Craig on his claim against them. Craig has filed a motion to dismiss the appeal of M-K-N Cattle Company and Tom Cameron for want of jurisdiction, and in our opinion the motion should be granted. [461] The attempted appeal by M-K-N Cattle Company and Tom Cameron is from an order overruling their motions for summary judgment. The order was interlocutory and there is no appeal therefrom. In the case of Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400, it is said: “If the only order in the trial court is one overruling a motion for summary judgment, then that order is interlocutory and no appeal will lie therefrom.” The cattle company and Cameron contend that because the trial court granted the motion of Rio Grande Electric Co-operative for a summary judgment, the above cited case and the cases of Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492, and Dallas Teachers Credit Union v. Sweeney, Tex. Civ.App., 326 S.W.2d 244, (Writ Dis.), are authority for holding that this court does have jurisdiction to review the action of the trial court in denying their motions for summary judgment. We cannot agree with this contention. The cited cases hold that where both parties to a law suit file motions for summary judgment and one of the motions is granted and judgment is entered thereon, the judgment becomes final and appealable and the Court of Civil Appeals is required to consider the correctness of the denial of the motion for summary judgment by the opposing party. In the instant case the plaintiff Craig filed no motion for summary judgment against M-K-N Cattle Company and Cameron and no judgment was entered disposing of the controversy between them and Craig. The only order bearing upon the controversy between said parties, other than the denial of the motions of the cattle company and Cameron for summary judgment, was an order severing Craig’s suit against them from his suit against Rio Grande Electric Co-operative, which order provided that the suit against the cattle company and Cameron be severed and given another number on the docket, to-wit: number 2494-A. The motion of Louie Craig to dismiss the attempted appeal of M-K-N Cattle Company and Tom Cameron from the interlocutory order denying their motions for summary judgment is granted and their appeal is dismissed for want of jurisdiction.