(concurring).
In our previous opinion we held that the trial court erred in severing the damage issues from the liability issues, the cause of action asserted being an indivisible cause of action. In reversing our action in dismissing the appeal on the ground that no final judgment had been rendered, the Supreme Court quoted from its prior opinion to the effect that an erroneous order of severance could be set aside on appeal.
I would set aside the erroneous order of severance in this case and reverse and remand on that ground alone. If we decide the other questions raised then there would be nothing to deter trial judges from erroneously trying cases piecemeal because they would accomplish the desired result regardless of how they may have splintered an indivisible cause of action.
I do not take this position solely or even primarily because appellate courts could be flooded with multiple appeals growing out of a single cause of action but because the delay and expense of multiple appeals would cause injustice to litigants who could afford neither the delay incident to nor the cost of multiple appeals.
I concur only in the order of reversal and remand.
A better solution to this case would be for the Supreme Court to reconsider and overrule its opinion reversing the judgment of this Court.
The order appealed from reads:
“On this 1st day of February, 1968, in the above styled and numbered cause, pending in the above mentioned court, came on to be heard the defendant’s amended motion to set aside judgment by default and for new trial, and the Court having read such motion and heard and considered the evidence and argument of counsel, is of the opinion that the following order should be entered.
It is ORDERED, ADJUDGED, AND DECREED that the defendant’s amended motion to set aside judgment by default and for new trial be, and the same is hereby, overruled, except insofar as it asks for a new trial on the issue of damages, and the defendant is hereby granted a jury trial on the issue of damages only.
To which action and ruling of the court defendant then and there in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, sitting at Austin, Texas.
Signed and ordered entered this 1st day of February, 1968.”
Appellant’s motion to sever was not made until February 29, 1968.
No order of severance appears in the transcript, unless the above order be so considered. It seems very doubtful to me that this is a severance order. See McKellar v. Bracewell, 437 S.W.2d 319, Tex.Civ.App. Houston (1st) 1969.
In reversing us the Court relied upon its opinion in Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76. In that case the trial court rendered judgment that as to certain items sued for that plaintiff take nothing. This was certainly a final disposition of a part of the controversy.
All of the cases cited in Pierce on this point are of similar import.
In Carter v. Skelly Oil Company, 317 S.W.2d 227, Tex.Civ.App. Waco, no writ (1958) the appeal was from a take nothing judgment as to a portion of a cause of action.
In Associated Growers v. Smith, 244 S.W.2d 348, Tex.Civ.App. San Antonio, Mandamus (1951) was a case in which the trial court severed certain separate claims and rendered judgment that as to certain counts plaintiff take nothing and that as to other counts plaintiff recover money damages and that other counts on which the jury could not agree be severed. The Court held this procedure was proper, and *128that the judgments rendered were final judgments.
Thompson v. A. J. Tebbe & Sons Co., 241 S.W.2d 633, Tex.Civ.App. El Paso, no writ (1951) was similar to Smith, supra, the trial court rendering money judgment on certain counts and severing certain other counts as to which he was then unable to hear evidence.
In Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531, the Court held that in a trespass to try title case where the defendants each claimed a separate part of the land sued for a severance could be granted and more than one final judgment rendered.
I submit that these cases do not sustain the Court’s ruling in this case. The judgment from which this appeal was taken is a far cry from the judgments in the cases cited. Each of those cases finally adjudicated the validity or invalidity of a claim. Nothing was left to be determined as to its extent or effect. Each of such judgments was ripe for execution. This is not true of the judgment here. It does not settle all or any portion of the single claim made by the pleadings. It has none of the attributes of finality. It is not ripe for execution, even for costs. Rule 149, T.R.C.P.
In Pierce, supra, the Court stated that “A judgment which fully adjudicates one of the severed causes is appealable. * * ” This judgment does not fully adjudicate any cause.
It grants a new trial in part. It is fundamental that no appeal lies from an order granting a new trial. This leaves standing only an order granting an interlocutory default judgment. See authorities cited in our former opinion. An interlocutory judgment is not appealable unless there is specific statutory or rule authority. No such authority is provided as to interlocutory default judgments.
Art. 2249, V.A.C.S. is unrepealed. It authorizes appeals from final judgments only. Until repealed it should be accorded respect.
I concur only to the extent indicated herein.