Murray v. Murray , 1949 Tex. App. LEXIS 2194 ( 1949 )

PER CURIAM.

The judgment from which appellant has perfected an appeal overruled the defendant’s plea in abatement,' s.et the 'cause for trial upon its merits for May' 31, 1949, continued the temporary restraining order thérétofore granted, and ordered the defendant to pay into the registry of the court $50 per month for the support of his minor children, to be paid by the Clerk to plaintiff.

That portion of the judgment which overruled defendant’s plea in abatement is not appealable. Witt v. Witt, Tex. Civ.App., 205 S.W.2d 612. Nor do we find any statutory authority authorizing an appeal from those portions of the judgment which set the cause for trial upon its merits for the 31st of May, 1949, and which ordered the defendant to pay $50 per month into the registry of the court for the support of his minor children. We are therefore of the opinion that those portions of the judgment are not appealable.

We construe that portion of the judgment which continues in force the temporary restraining order theretofore granted as a temporary injunction from which an appeal is authorized toy art. .4662, Vernon’s Ann. Civ. St. and Rule 385, Texas Rules of Civil Procedure (Witt v. Witt, supra).

Appellee’s motion to dismiss the appeal is therefore granted insofar as appellant attempts to appeal from that portion of the judgment overruling the defendant’s plea in abatement, setting the cause for trial on its merits for the 31st of May, 1949, and ordering the defendant to pay into the registry of the court $50 per month for the support of his minor children. Insofar as appellee seeks to dismiss the appeal from that portion of the judgment which continues in force the temporary restraining order theretofore granted, the motion is overruled.