Tommy Hall, Jr. v. Patricia L. Hall--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-94-257-CV

TOMMY HALL, JR.,

Appellant

v.

PATRICIA L. HALL,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 94-00-03915-CV

O P I N I O N

Tommy Hall, Jr. appeals from an order denying his petition for a divorce. In one point of error he argues that the court abused its discretion in refusing to grant a default divorce. Because Hall failed to obtain permission for substituted service of citation, we hold that the court did not have jurisdiction to grant his divorce and that the court's order is therefore interlocutory. Thus, we will dismiss this cause for want for jurisdiction.

Hall filed a pro se petition for divorce. Unable to locate his wife, he asked the court for permission to serve citation by posting the citation at the courthouse. See Tex. R. Civ. P. 106; Tex. Fam. Code Ann. 3.521(d) (Vernon 1993). Before the court ruled on the motion, he posted the citation and subsequently moved for a default judgment when his wife failed to appear. See Tex. R. Civ. P. 329. The court denied his petition for divorce.

Hall's motion for substituted service was neither granted nor denied, yet he proceeded without permission. Thus, his attempt to serve citation by posting was ineffective. See Heth v. Heth, 661 S.W.2d 303, 304-05 (Tex. App. Fort Worth 1983, writ dismissed); Grasz v. Grasz, 608 S.W.2d 356, 358 (Tex. Civ. App. Dallas 1980, no writ). Because his attempt to serve citation was ineffective, the court did not have jurisdiction over his wife. See Wilson v. Dunn, 800 S.W.2d 833, 836-37 (Tex. 1990). Thus, the court could not have granted his divorce.

However, neither could the court deny his divorce, absent some other authority. Thus, the court's ruling, while purporting to deny his petition, was actually a denial of his motion for a default judgment. As such, the court's ruling is interlocutory because the order does not dispose of the case but leaves it for further action by the court. See Speer v. Stover, 711 S.W.2d 730, 734 (Tex. App. San Antonio 1986, no writ). Except where authorized by statute, we do not have jurisdiction over appeals from interlocutory orders. See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990). The applicable statute does not make an interlocutory order denying a motion for a default judgment appealable. See Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon Supp. 1995). Therefore, we must dismiss this appeal for want of jurisdiction.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed July 19, 1995

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