Bailey v. Shaw

7 Citing cases

  1. Matter of Moody

    825 F.2d 81 (5th Cir. 1987)   Cited 48 times
    Explaining that the resolution of an entire adversary proceeding is final

    Id. (citing In re Goldblatt Bros., 758 F.2d 1248, 1250 (7th Cir. 1985) (order determining rights and liabilities of the parties and remanding for an accounting is interlocutory unless the accounting is merely mechanical or ministerial)). In addition, although not controlling in this federal suit, a number of Texas cases dealing with suits to establish ownership interests in a partnership and to require an accounting have held that a decree ordering a winding up and accounting of a partnership is not a final, appealable judgment, at least not where further action by the court is necessary to give the plaintiff complete relief. See, e.g., Sterett v. Dyer, 230 S.W.2d 461 (Tex.Ct.App. โ€” San Antonio, 1950, writ ref'd); Bailey v. Shaw, 26 S.W.2d 669 (Tex.Ct.App. โ€” Austin 1930, writ ref'd). But cf. Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 947-48 (1960) (judgment ordering accounting and payment to plaintiff of one-half of profits of defendants' cattle trading business held final, where there were no "other equities or rights of the parties to be determined by the court").

  2. Howard v. Howard

    670 S.W.2d 737 (Tex. App. 1984)   Cited 14 times
    Holding that bankruptcy stay halts all time limits in pending state court action

    Hasty v. A B Construction Co., 612 S.W.2d 267, 268 (Tex.Civ.App. โ€” San Antonio 1981, no writ). A writ of error will lie only from a final judgment. TEX.REV.CIV.STAT.ANN. arts. 2249 (Vernon Supp. 1984) and 2255 (Vernon 1971); Bailey v. Shaw, 26 S.W.2d 669, 669 (Tex.Civ.App.-Austin 1930, writ ref'd). The motion to dismiss is granted.

  3. Perkins v. Springstun

    557 S.W.2d 343 (Tex. Civ. App. 1977)   Cited 21 times
    In Perkins v. Springstun, 557 S.W.2d 343 (Tex. Civ. App. 1977), the accountant's report in question was not in the hands of a custodian or other qualified witness with knowledge of preparation of the document and the report was compiled for the purposes of litigation and not in the ordinary course of business.

    Because the November 14, 1975 judgment only decided principles upon which the rights of the parties might be judicially determined in some future proceeding, the judgment was not final. Leyhe v. McNamara, 243 S.W. 1074 (Tex. 1922); Bailey v. Shaw, 26 S.W.2d 669 (Tex.Civ.App. 1930, writ ref'd); Culicchia v. Taormina, 332 S.W.2d 803 (Tex.Civ.App. 1960, writ ref'd n. r. e.); see 3 A.L.R.2d 342 (1949). With respect to the merits of the appeal, we are of the opinion that the judgment against Perkins for the sum of $150,343.50 was supported by no evidence.

  4. Culicchia v. Taormina

    332 S.W.2d 803 (Tex. Civ. App. 1960)   Cited 4 times

    As expressed in Leyhe v. McNamara, Tex.Com.App., 243 S.W. 1074, 1077, an accounting suit, 'The judgment was never finished.' Accord, Bailey v. Shaw, Tex.Civ.App., 26 S.W.2d 669; First Nat. Bank of Houston v. Weiner, Tex.Civ.App., 253 S.W. 615. The appeal is dismissed.

  5. Ferguson v. Ferguson

    327 S.W.2d 787 (Tex. Civ. App. 1959)   Cited 6 times

    Such would be the case because of the applicability of Rules authorizing an appeal, absent which no appeal would lie because under general rules such decree would not amount to a final and appealable judgment. Bailey v. Shaw, Tex.Civ.App., Austin 1930, 26 S.W.2d 669, error refused. From a careful examination of the judgment in the divorce case of appellant and L. A. Ferguson (incorporating the order granting a severance therefrom on the issues later separately tried in the proceedings giving rise to this appeal) and the pleadings of the appellant upon the trial of the issues so severed and tried after entry of the decree of divorce, we believe the situation here is semi-analogous to the situation confronting the court in the case of Sterett v. Dyer, Tex.Civ.App., San Antonio 1950, 230 S.W.2d 461, error refused.

  6. Sterett v. Dyer

    230 S.W.2d 461 (Tex. Civ. App. 1950)   Cited 10 times

    In 3A Tex.Jur. p. 111, ยง 82, it is said: 'A judgment is not final and appealable where further proceedings and action of the court are necessary to complete relief. Under this rule, no appeal lies from a judgment establishing the existence of a partnership, ordering an accounting and appointing a receiver, or a judgment merely determining that the contract pleaded is valid and binding and leaving the rights of the parties thereunder undisposed of.' Bailey v. Shaw, Tex.Civ.App., 26 S.W.2d 669, in which a writ of error was refused by our Supreme Court, is a case very similar to the instant case, and it is there said: 'It is now well settled that in the absence of a statute authorizing an appeal otherwise, an appeal will lie only from a final judgment.' and it is further said: "* * * a judgment merely establishing the existence of a partnership, ordering an accounting, and appointing a receiver is not a final judgment, because it merely decides principles upon which the rights of the parties may be determined in some further or subsequent proceeding.' citing Leyhe v. McNamara, Tex.Com.App., 243 S.W. 1074, by the Commission of Appeals.

  7. Perry v. State

    72 S.W.2d 921 (Tex. Civ. App. 1934)   Cited 2 times

    It has been uniformly held that, in absence of a statute, an appeal will lie only from a final judgment. Bailey v. Shaw (Tex. Civ. App.) 26 S.W.2d 669 (writ refused). Statutes relating to appeals by writ of error apply to final judgments.