concurring.
I concur in the result reached by the majority opinion that Lovell is entitled to the entire 262.45 acres as awarded by the trial court. However, I would hold that Clara’s attempted appeal from the October 10th order appointing a surveyor was not within Rule 306c. I would, therefore, reverse the court of appeals’ judgment and dismiss the appeal.
I believe that Rule 306c does not save the premature appeal here because in its October 10th order the trial court clearly stated it would enter a “final judgment” when the surveyor returned with his survey. The October 10 order was thus interlocutory. Rule 306c by its own terms applies only where the prematurely filed motion assails the final judgment. Because the October 24th appeal here was directed solely to the interlocutory order, it cannot be considered prematurely filed under Rule 306c. Wilson v. Worley, 562 S.W.2d 22, 23 (Tex.Civ.App.—Waco 1978, writ ref’d n.r.e.); Sessions v. Whitcomb, 329 S.W.2d 470, 472 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.).
The majority’s reliance on Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1978) is misplaced. That case did not involve any interlocutory order entered before the judgment as in the instant suit. Rather, the appellant there filed his motion for new trial after the trial court judgment was announced in open court but before it was signed. Lassi-ter is thus a good example of the type of situation for which Rule 306c was written; our case here is clearly distinguishable.
Because Rule 306c does not apply to these facts, I would hold that the court of appeals was without jurisdiction to hear the appeal.