Akins v. Coffee

• Decision Date: 06 March 1964
• Docket Number: No. 16318,16318
• Citation: 376 S.W.2d 953
• Parties: Cecil AKINS et al., Appellants, v. Roy C. COFFEE, Appellee.
• Court: Texas Court of Appeals

Page 953

376 S.W.2d 953

Cecil AKINS et al., Appellants, v. Roy C. COFFEE, Appellee.

No. 16318.

Court of Civil Appeals of Texas, Dallas.

March 6, 1964.

Rehearing Denied March 27, 1964.

Alvin Boyd, Dallas, for appellants.

Coffee, Coffee & Chantilis, and Roy C. Coffee, Jr., Dallas, for appellee.

WILLIAMS, Justice.

Summary judgment proceeding. Rule 166-A, Texas Rules Civil Procedure. Appellee's suit against appellants was upon a verified account pursuant to Rule 185, T.R.C.P. Appellants answered, denying generally that they owed appellee anything and specifically alleging that the sand and gravel, being the materials made the basis of the verified account, purchased by them was by virtue of a sublease agreement with one Clark, appellee's lessee. The answer was verified but not within the language of Rule 185, T.R.C.P. Appellee moved for summary judgment and supported said motion with affidavits and other documents. Appellants did not answer the motion for summary judgment or submit extrinsic evidence in opposition thereto. The trial court, considering the pleadings, motion and affidavits, sustained the motion for summary judgment for the amount of the debt, interest and attorneys' fees.

Appellants, in their sole point on appeal, generally insist that issues of fact were presented by their verified answer to appellee's petition and therefore the court should not have sustained the motion for summary judgment. Under the particular facts presented in this record we are of the opinion that the trial court was correct and the judgment should be affirmed.

Appellee's motion for summary judgment postulates the nonexistence of issuable facts. It is, of course, elementary that upon hearing the burden of proof was definitely upon appellee to establish the absence of any genuine issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. In our opinion appellee has sustained this burden.

Appellee's cause of action was upon verified account, with attached invoice showing materials furnished and price thereof, all pursuant to the express terms and provisions of Rule 185, T.R.C.P., which provides that in such action the same shall be taken as prima facie evidence thereof unless the party resisting such claim shall file a written denial, under oath, stating that such claim is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust. (Emphasis supplied.) By virtue of this rule, and superseded Art. 3736, Vernon's Ann.Civ.St., it has been held that failure to file a sworn denial of a verified account amounts to an admission that the account is correct. Walker-Neer Machine Co. v. Acmeline Mfg. Co., Tex.Civ.App., 279 S.W.2d 156, wr. ref. n. r. e. Appellee, by countervailing point, contends that since appellants did not substantially comply with Rule 185, T.R.C.P., in making verified answer to its petition, that same fails to deny the correctness of same and amounts to an admission that the account is correct. We agree with this contention. While it is true that no particular form of affidavit is required by Rule 185, T.R.C.P., yet there must be a denial of the account in the language stated in the rule. Glasco v. Frazer, Tex.Civ.App., 225 S.W.2d 633; Kost Furniture Co. v. Radio Equipment Co., Tex.Civ.App., 100 S.W.2d 162; Stephens v. Lott, Tex.Civ.App., 339 S.W.2d 405.

In Sessions Co. v. W. A. Sheaffer Pen Co., Tex.Civ.App., 344 S.W.2d 180, wr. ref. n. r. e., this court had before it an almost identical situation wherein an action upon a verified account under Rule 185, T.R.C.P. was answered by a verified general denial, followed by special defenses, and summary judgment for plaintiff was affirmed. In sustaining the judgment in that case was held that the answer did not comply with the requirements of Rule 185 or Rule 166-A(e), T.R.C.P. In doing so we relied upon our former opinion in Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, wr. ref., in which we held that a general denial, though sworn to, was insufficient to meet the requirements of the law.

Appellants seek to justify the sufficiency of their verified answer by the opinion of the El Paso Court of Civil Appeals in Basse Truckline, Inc. v. Strickland Transportation Co., Tex.Civ.App., 359 S.W.2d 477, no wr. hist., but a careful examination of that opinion discloses that the verified denial in that case was in substantial conformity with Rule 185, T.R.C.P. in that the answer alleged that the account 'is not just' and furthermore, in an accompanying affidavit, a specific denial of the justness of the account was made 'in whole or in part.' We find no such language, or comparable language, utilized in this case and hence the decision in that case is not applicable here.

Appellants' verified answer is insufficient to meet the requirements of Rule 166-A(e), T.R.C.P. for the reason that such answer contains hearsay statements and conclusions which would not be admissible upon the trial of the case. The answer, following general denial of plaintiff's petition alleges, inter alia, that 'it is defendant's understanding, at this time, and...