PHB, INC. v. Goldsmith

539 S.W.2d 60 (1976)

PHB, INC., Petitioner, v. Mrs. W. T. GOLDSMITH, Respondent.

No. B-5952.

Supreme Court of Texas.

June 30, 1976.

Werner & Rusk, John C. Werner, Houston, for petitioner.

Meyer Jacobson, Houston, for respondent.

PER CURIAM.

PHB, Inc. brought a bill of review to set aside a prior judgment in which Mrs. W. T. Goldsmith had been awarded title and possession to certain real estate. Mrs. Goldsmith filed a motion for summary judgment which the trial court granted. The Court of Civil Appeals affirmed. 534 S.W.2d 196.

The trial court's order of dismissal, dated April 26, 1974, and discussed by the Court of Civil Appeals at 534 S.W.2d 197, did not refer to or mention Mrs. Goldsmith's counterclaim. Under such circumstances, there is no presumption that the order of dismissal disposed of the issues in the counterclaim. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941). It follows that the April 26, 1974 order was interlocutory, rather than final, in nature. The trial court thereby retained jurisdiction of the counterclaim until final judgment was entered on October 18, 1974. The writ of error is refused, no reversible error. Tex.R.Civ.P. 483.