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W. H. MOSER v. JOHN F. BUCKNER & SONS (12/19/57)

December 19, 1957

W. H. MOSER, D/B/A W.H. MOSER CONSTRUCTION CO., APPELLANT,
v.
JOHN F. BUCKNER & SONS, APPELLEE



Author: Mcdonald

McDONALD, Chief Justice.

Plaintiffs Buckner & Sons brought suit against defendant Moser on a note, an account, and for indebtedness. Defendant filed a plea in abatement to the suit, alleging as grounds the pendency of another suit in the same court between the same parties and involving the same subject matter. Defendant prayed that the plea in abatement be sustained and the instant case dismissed. A hearing was had on the plea in abatement, after which the Trial Court overruled same by order made on 10 October 1957, and entered 23 October 1957. From such order defendants appeal to this court and caused Transcript and Statement of Facts to be filed in this court on 9 November 1957.

Plaintiffs have filed a motion to dismiss the appeal on the ground that the order appealed from is not a final judgment, and is not an interlocutory order from which an appeal is allowed by Article 2250, R.C.S., or by law.

The record before us reflects that the appeal is from an order overruling a plea in abatement predicated upon the pendency of another suit.

No appeal lies from an order overruling a plea in abatement. See 3A Tex.Jur. p. 123; Beacon Oil & Refining Co. v. State, Tex.Civ.App., 56 S.W.2d 519; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Witt v. Witt, Tex.Civ.App., 205 S.W.2d 612; Hammonds v. Lloyds Fire & Cas. Assur., Tex.Civ.App., 256 S.W.2d 223; Hastings Oil Co. v. Texas Co., Tex.Civ.App., 227 S.W.2d 317, affirmed 149 Tex. 416, 234 S.W.2d 389; Murray v. Murray, Tex.Civ.App., 224 S.W.2d 350. The court's action in overruling a plea in abatement is reviewable only when the case is appealed upon its merits and from a final judgment in the case.

It follows that defendant's motion to dismiss the appeal is sustained, and the appeal is accordingly dismissed.

19571219

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