Dickson & Associates v. Brady ( 1975 )

COLEMAN, Chief Justice

(concurring).

The case which the court proposed to dismiss, and did dismiss by the judgment entered, was a case which had been filed by the appellant. An interlocutory summary judgment had been previously entered denying the relief which appellant had sought. This judgment did not deal with the appel-lee’s cross-action, and, therefore, was not a final judgment. The court, possibly through inadvertence, set the case on the dismissal docket. There is no basis for an inference that the court intended to dismiss the cross-action only. It is more likely that the court was proceeding under local Rule 12(t), Rules of Procedure for the District Courts of Harris County, providing that cases on file for three years be placed on a dismissal docket. The appellant knew the case was on that docket and failed to protest, or to take action authorized by Rule 165a, T.R.C.P., apparently relying on an assumption that the court’s judgment dismissed the cross-action only.

This court does not agree with that construction of the judgment, and, accordingly, holds that the appeal was not properly perfected. I concur.