In the Guardianship of Murphy

BRIGHAM, Justice,

dissenting.

I would hold that the trial court’s order transferring the business of the ward’s guardianship from Wichita County to Harris County under section 612 is final for purposes of appeal; therefore, I respectfully dissent.

The case law regarding the appealability of probate orders is somewhat unsettled. See Christensen v. Harkins, 740 S.W.2d 69, 72 (Tex.App.—Fort Worth 1987, no writ). Because the legislature cannot conceivably identify in advance what types of orders should be immediately appealable or predict when in a particular case an earlier rather than later review of an interlocutory order is compelling, the question of whether an order is final for purposes of appeal is frequently left to the courts. See, e.g., Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945) (determining that an order overruling a plea in abatement .to petition to probate will was merely interlocutory, and was therefore not ap-pealable); Stubbs v. Ortega, 977 S.W.2d 718, 721 (Tex.App.—Fort Worth 1998, pet. denied) (addressing the issue because there is no express statute which declares the trial court’s order to allow a guardian to file for divorce on behalf of her ward is a final and appealable order). In making such a determination in the context of probate law, we have some guidance.

To authorize an appeal of a probate matter, it is not necessary that the order to be appealed be one that fully and finally disposes of the entire probate proceeding; it must be one which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding is brought. See Kelley, 188 S.W.2d at 386 (interpreting the predecessor to section 5(f) of the probate code). Absent an express statute declaring the phase of the probate proceeding to be final and appealable, the supreme court has determined that “if there is a proceeding of which the order in question may *174logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.” Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995).

The Corpus Christi court determined that a “substantial right” makes the probate order appealable. See Estate of Wright, 676 S.W.2d 161, 163 (Tex.App.—Corpus Christi 1984, writ ref'd n.r.e.). The “substantial right” language is merely one of the factors for determining whether a probate order is appealable, but equally important is the supreme court’s language that the order must dispose of all issues in the phase of the proceeding for which it was brought. See Crowson, 897 S.W.2d at 783.

Although the majority acknowledges that an order need not fully dispose of the entire proceeding to be final and appeal-able, instead of applying the Crowson test, it appears to apply the general rule that appellate jurisdiction exists only in cases in which a final judgment has been rendered that disposes of all issues and parties in the case. See Jani-King of Memphis, Inc. v. Yates, 965 S.W.2d 665, 666 (Tex.App.—Houston [14 th Dist.] 1998, no pet.). But the term “final judgment” applies differently in different contexts.1 See Street v. Second Court of Appeals, 756 S.W.2d 299, 301 (Tex.1988).

In Crowson, the “proceeding” was the heirship determination. See Crowson, 897 S.W.2d at 781. The “order in question” was a summary judgment order, determining that the claimant Crowson was not an heir. See id. In holding that the summary judgment against Crowson was interlocutory, and thus, not appealable absent a severance, the supreme court recognized that the summary judgment was logically a part of the heirship determination, but it did not dispose of the heirship claims of all the intervenors. See id. at 783. Therefore, the summary judgment did not dispose of that whole “particular phase” of the probate proceeding. See id. Also, the court in Crowson took into consideration the express probate code provision that a judgment in a proceeding to declare heirship is final and appealable. See id. at 782; Tex. PROb.Code Ann. § 55(a) (Vernon 1980). In other words, the court recognized that a determination that Crowson was not an heir could not be a final order where the issue of who the heirs were had not yet been addressed and the pertinent statute provided that a judgment identifying the heirs was final and reviewable. See Crowson, 897 S.W.2d at 782.

Here, the “proceeding” is the guardianship, and the “order in question” is the order transferring the business of the guardianship to Harris County. A guardianship is not an ordinary lawsuit, but is an ongoing proceeding in which various orders are made from time to time. Although there is no express statute providing that a judgment in an ongoing guardianship is final and appealable, as in a suit to determine heirship, it is also worthy to note that there is no express provision that an order transferring the business of a guardianship is not subject to interlocutory appeal.2

*175Because the order transferring the business of the guardianship fully disposed of a “particular phase” of the guardianship, was conclusive of the question for which that part of the proceeding was brought, and left no issues outstanding with regard to the forum of the core guardianship, it is a final order for purposes of appeal.

If the transfer of the core guardianship proceeding is not appealable now, when would it be appealable? The majority opinion, I believe, disregards the supreme court’s policy to avoid constructions that defeat bona fide attempts to appeal. See Crowson, 897 S.W.2d at 782. It is for these reasons that I dissent.

. For example, in the context of executions, a garnishment action, although ancillary to the underlying suit, is a separate proceeding. See Holtzman v. Holtzman, 993 S.W.2d 729, 731-32 (Tex.App.—Texarkana 1999, pet. filed). Because it is a separate proceeding, an appeal will lie from a final judgment in a garnishment suit independently of the underlying suit. See Varner v. Koons, 888 S.W.2d 511, 513 (Tex.App.—El Paso 1994, no writ). In the summary judgment context, an order is final only if it disposes of all parties and all issues in a case. See North East Indep. School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966).

. There is such a prohibition in the family code. Section 155.204 provides that ”[a]n order transferring or refusing to transfer the [suit affecting the parent-child relationship] is not subject to interlocutory appeal.” Tex. Fam. Code Ann. § 155.204(e) (Vernon 1996).