CHERYL KAY WEBB, IN HER CAPACITY AS SUCCESSOR INDEPENDENT EXECUTOR

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

Pending before this Court is appellants' motion to dismiss by which they indicate they no longer wish to pursue this appeal. Without passing on the merits of the case, their motion is granted and the appeal is hereby dismissed. Tex. R. App. P. 42.1(a)(1).

Don H. Reavis

Justice

date it as of the date of rendition, and forward it to us. Id. On the other hand, if judgment had not been rendered, the trial court was to inform us of that and forego rendering one. In choosing this course, we merely attempted to obtain an accurate and complete record of what occurred below. Id. at 74. So too did we caution the litigants against creating a new record as evinced by our statement that "if judgment was never rendered the parties cannot cause it to now be rendered and included within the supplement." Id. at 75.

Here, however, the Cordovas do not argue that the trial court actually entered a final judgment or somehow rendered one but failed to reduce it to writing. Rather, they want an opportunity to 1) obtain a "new judgment," 2) file a "new motion for new trial," and 3) receive a hearing on their new motion for new trial. That is nothing short of attempting to create a new record and continue the trial court proceeding. Those are acts which we expressly refused to condone in Disco Machine.

Moreover, we have before us a transcript of the hearing from which this appeal emanated. Therein, the trial court simply granted Dr. Joel C. Osborn's motion for summary judgment, queried about a severance, and "presume[d] then that [the Cordovas] will take whatever steps . . . consider[ed] necessary." Nothing was said about entering a final judgment or declaring a decision of the law upon the matters at issue. Given this, the record shows that the court did not purport to render a final judgment. So, there existed no need for a remand to develop that subject or reduce to writing that which did not happen. In short, Disco Machine would require dismissal.

Per Curiam

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2002).