Waldo v. Davis

Full title: Diane WALDO, Appellant, v. Roy DAVIS, Appellee.

Court: Court of Civil Appeals of Texas, El Paso

Date published: Mar 21, 1973

492 S.W.2d 598 (Tex. Civ. App. 1973)

Opinion

492 S.W.2d 598 (Tex.Civ.App. —El Paso 1973) Diane WALDO, Appellant, v. Roy DAVIS, Appellee. No. 6317. Court of Civil Appeals of Texas, El Paso March 21, 1973

Rehearing Denied April 11, 1973. Malcolm McGregor, Philip T. Cole, Janet R . Pauls, El Paso, for appellant.

James J. Crook, Glen A. Sutherland, El Paso, for appellee.

OPINION

PRESLAR, Justice.

This is an appeal from an order granting a new trial on an application for a Bill of Review. We are of the opinion that the order sought to be appealed from is interlocutory and that the appeal should be dismissed.

In the Bill of Review proceeding, the trial Court set aside its prior Summary Judgment and granted a new trial for the cause to be tried on its merits. No determination of the merits of the case was made as that was reserved for a later separate trial. This the Court could do in exercise of the discretion granted it by Rule 174(b), Texas Rules of Civil Procedure, and under such circumstances the order entered by the trial Court is not a final judgment and this Court is without power to review it. Palmer v. D.O.K.K. Benevolent and Insurance Association, 160 Tex. 513, 334 S.W.2d 149 (1960); Warren v. Walter, 414 S.W.2d 423 (Tex.Sup.1967).

The appeal is dismissed.