Ref-Chem Corp. v. El Paso Products Co. , 1973 Tex. App. LEXIS 2554 ( 1973 )

OPINION

RAMSEY, Justice.

The opinion and judgment of this Court, dated the 29th day of November, 1972, is withdrawn and this opinion is substituted therefor.

This is an appeal from a partial summary judgment involving an indemnity agreement. An employee of Ref-Chem, Plaintiff, initiated the lawsuit against El Paso Products Company, Defendant, for personal injuries. El Paso Products, Third Party Plaintiff-Appellee, brought a third-party action against Ref-Chem, Third Party Defendant-Appellant, seeking recovery over and against Ref-Chem for any damages which Bryant might recover against El Paso. El Paso’s claim against Red-Chem was based on an indemnity agreement which Ref-Chem had furnished to El Paso.

El Paso then filed its Motion for Summary Judgment against Ref-Chem seeking an order from the trial Court decreeing that in the event Bryant recovered a judgment against El Paso, that El Paso then be indemnified under the terms of the indemnity agreement. The trial Court entered a partial summary judgment as prayed for by El Paso, providing in part as follows:

. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that in the event that the Plaintiff recovers any judgment against EL PASO PRODUCTS COMPANY herein, Third Party Plaintiff, EL PASO PRODUCTS COMPANY, have indemnity over and against Third Party Defendant, REF-CHEM CORPORATION, for the amount of said Judgment, if any, up to the sum of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00), and the parties are directed to proceed to trial on the Plaintiff’s cause of action as against the Defendant, EL PASO PRODUCTS COMPANY.”

From this partial summary judgment, Ref-Chem has perfected this appeal.

In reviewing the record, there has been no severance of the third-party action from the remainder of the case. A partial summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial Court. Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959).

We are of the opinion that this partial summary judgment is interlocutory in nature, and that this Court is without jurisdiction. In such circumstances, it is our duty to dismiss the appeal on our own motion. Commercial Standard Insurance Company v. Stonewall Insurance Company, Tex.Civ.App., 469 S.W.2d 310 (no writ history); Zambrano v. Olivas, Tex.Civ.App., 477 S.W.2d 299 (no writ history).

The appeal is dismissed.

OPINION

RAMSEY, Justice.

The opinion and judgment of this Court, dated the 29th day of November, 1972, is withdrawn and this opinion is substituted therefor.

This is an appeal from a partial summary judgment. This case is a companion case to our cause number 6292, styled Ref-Chem Corporation, Appellant, v. El Paso Products Company, Appellee, and the disposition of this case is controlled by our opinion this day rendered in that case. Identical questions are presented by both appeals, both were briefed and orally argued by the same counsel, and were argued jointly. However, the cases have not been consolidated either in the trial Court or this Court, so that it is necessary to make an independent disposition of each case.

We therefore dismiss the appeal in accordance with our opinion in cause number 6292.