W. C. Henger, d.b.a. Henger Construction Company v. Maude Rhody Cotton et al., 159 Tex. 139

PER CURIAM. This is a case in which a

summary judgment' was rendered by the trial court in favor of petitioner. On appeal, the Court of Civil Appeals reversed and remanded this

summary judgment. 312 S.W. 2d 299. We agree that the rendition of the

summary judgment in favor of petitioner was error. The Court of Civil Appeals affirmed the judgment in favor of Baker Hotel of Dallas, Inc. on petitioner’s cross-action against it. In this we hold the Court of Civil Appeals was in error. The whole cause should be reversed. Petitioner is entitled to the right to try his cross-action against the Hotel Company in the' event respondents should recover against him on the trial on the merits. No trial on the merits has been had. City of Amarillo v. Stockton, 158 Texas 275, 310 S.W. 2d 737 (1), (1958) and authorities cited therein.

We express no opinion on the merits of either the main cause of action, or on petitioner’s cross-action against the Hotel Company. Under the authority of Rule 483, Texas Rules of Civil Procedure, we reverse and remand the whole cause to the trial court for a trial upon the merits. Opinion delivered Oct. 1, 1958. Rehearing overruled October 29, 1958.