Opinion
No. 04-90-00640-CV.
August 28, 1991.
Appeal from the 57th District Court, Bexar County; Peter Michael Curry, Judge.
L. John Gittinger, III, Leonard J. Gittinger, Jr., Gittinger Gittinger, San Antonio, for appellant.
Stephen G. Cochran, Johnson Christopher, Inc., San Antonio, for appellee.
Before CHAPA, PEEPLES and GARCIA, JJ.
OPINION
Appellant, Metroplex Erectors and Construction, Inc. ["Metroplex"], appeals from an order dismissing its cause of action against appellee, Ray Ellison Homes, Inc. ["Ray Ellison"]. Metroplex sued Ray Ellison seeking payment for construction work. Ray Ellison filed a counterclaim against Metroplex. The record does not reflect a disposition of Ray Ellison's counterclaim.
Thus, this court does not have jurisdiction to consider this appeal. In Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 298, 150 S.W.2d 377, 378 (Tex. 1944), Chief Justice Alexander stated:
The mere dismissal of plaintiff's suit did not have the effect of dismissing or otherwise disposing of defendant's cross-action. [Citations omitted] . . . In other words, where court dismisses plaintiff's suit, and does not refer to or mention the defendant's cross-action, the judgment does not dispose of the cross-action expressly or by implication, and is therefore not such a final judgment as will authorize an appeal therefrom.
(Emphasis added).
The July 24, 1990, dismissal order does not dispose of appellee's counterclaim. "The rule of North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex. 1966), is not applicable to orders of dismissal for want of prosecution where the case is not 'regularly set for a conventional trial on the merits.' 400 S.W.2d at 987." Massey v. Davis, 650 S.W.2d 551, 554 (Tex.App. — Eastland 1983, writ ref'd n.r.e.).
Accordingly, the appeal is dismissed for want of jurisdiction.