F. & T. DEVELOPMENT CO. v. Morris

248 S.W.2d 233 (1952)

F. & T. DEVELOPMENT CO., Inc.
v.
MORRIS et ux.

No. 15340.

Court of Civil Appeals of Texas, Fort Worth.

April 4, 1952.

Gerald S. Gordon, of Houston, for appellant.

Tabor Stone and Ted Robertson, both of Houston, for appellees.

CULVER, Justice.

Suit was brought in district court of Harris County by Morris and wife, appellees, against F. & T. Development Company, Inc., and Commercial Title Company, seeking specific performance of a contract for the sale of real property, and, in the alternative, for liquidated damages. F. & T. Development Company moved for summary judgment, and appeals from the trial court's action in denying that motion.

For a determination of this cause, it is only necessary to pass upon the second point presented, namely, that the trial court erred in overruling defendants' motion for summary judgment.

While there are no reported cases in Texas so far as we know on this point, it is to be observed that Rule 166-A, Texas Rules of Civil Procedure, follows almost identically the language of the Federal Rule 56 for Civil Procedure, 28 U.S.C.A., and the Federal courts have held adversely to appellant's contention.

The refusal of a summary judgment is interlocutory in character and is not a final judgment, because the case still remains to be tried. No appeal, therefore, would lie from such refusal. Jones v. St. Paul Fire & Marine Ins. Co., 5 Cir., 108 F.2d 123; Morgenstern Chemical Co., Inc. v. Schering Corporation, 3 Cir., 181 F.2d 160; and Hiroshi Muramato v. Blidberg Rothchild Co., Inc., D.C., 94 F. Supp. 131.

Inferentially, the trial court in this case found that there were one or more disputed issues of fact and held the case for trial on its merits. The appellant has not been harmed, even though he may be correct in his position that there are no fact issues, on which point we express no opinion, as he will have his right of appeal should the case ultimately be decided against him in the trial court.

Being of the opinion that the appellant has no right of appeal from the denial of motion for summary judgment, this appeal is dismissed and the case is remanded for further proceedings.