Crain v. Davis, B--132

Decision Date28 June 1967
Docket NumberNo. B--132,B--132
Citation417 S.W.2d 53
PartiesCharlene Davis CRAIN, Petitioner, v. Vernon L. DAVIS et ux., Respondents.
CourtTexas Supreme Court

Walter M. Sekaly, Beaumont, for petitioner.

Sexton & Owens, Paul R. Owens, Orange, for respondents.

SMITH, Justice.

This suit was brought in the nature of a bill of review by the Petitioner to set aside an agreed judgment awarding custody of her minor child to the paternal grandparents, Respondents herein. The Respondents filed an answer and subsequently filed motion for summary judgment. The motion for summary judgment was granted. On appeal by Petitioner, the Court of Civil Appeals affirmed, 411 S.W.2d 437. We reverse the judgment of both courts and remand the cause for trial for the reasons now to be stated.

The trial court's judgment contains a finding that the motion for summary judgment 'was accompanied by affidavits and that an opposing affidavit had been served and was before the Court.' The judgment sustaining Respondents' motion for summary judgment further recites:

'* * * (T)he Court finds that the pleadings, depositions and admissions on file, together with such affidavits show an absence of genuine issue of any material fact, * * * and that this summary judgment should be rendered for Respondents.

'It is * * * decreed that this summary judgment should be rendered for * * * Vernon L. Davis, et ux, who are entitled thereto as a matter of law, and it is accordingly ordered, adjudged and decreed that Petitioner take nothing by reason of her petition for Bill of Review, that same is herewith in all things denied and dismissed, * * * to all of which Petitioner duly excepted and gave her notice of appeal to the Ninth Court of Civil Appeals, sitting at Beaumont, Texas.'

Although the judgment recites that 'depositions and admissions' were on file, the record as it actually existed before the trial court, before the Court of Civil Appeals, and as it now exists before this Court, contains no depositions or admissions, but contains only the pleadings; the motion for summary judgment; and, the supporting and opposing affidavits. 1

This Court has for disposition two questions. First, do the pleadings of Petitioner state a meritorious defense? Without detailing the pleadings, Petitioner alleged that she, through fraudulent representations, agreed to the entry of the judgment awarding the custody of her minor child to the Respondents. We simply hold that the Petitioner's pleadings state a meritorious defense. Petitioner alleged in her petition for Bill of Review that she was a fit and proper person to have the care and custody of her minor child. Next, there are no affidavits which provide a basis for contending that her allegations relating to fraud are untrue or insufficient as a matter of law. Therefore, the summary judgment cannot be sustained upon the ground that the Petitioner's Bill of Review pleadings fail to afford a basis for a proper defense.

We turn now to the sufficiency of Respondents' motion for summary judgment and the supporting affidavits attached to such motion. It is self-evident that the affidavits which were filed in support of the motion for summary judgment do not meet the requirement of Rule 166--A, Texas Rules of Civil Procedure, that the affidavits shall set forth such facts as would be admissible in evidence. The statements contained in...

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  • Mobil Oil Corp. v. Matagorda County Drainage Dist. No. 3, 1302
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • April 12, 1979
    ...v. Surety Savings & Loan Association, 487 S.W.2d 702 (Tex.Sup.1972); Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup.1968); Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967); Travis County Water Control & Improvement Dist. No. 12 v. McMillen, 414 S.W.2d 450 (Tex.Sup.1966). Summary judgment is proper ......
  • Garza v. Allied Finance Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • April 20, 1978
    ...not considered to have any probative value. Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.Sup.1972); Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967); Travis County Water Control & Improvement District No. 12 v. McMillen, 414 S.W.2d 450 (Tex.Sup.1966); Box v. Bates, 162 Te......
  • Nichols v. Smith, 17365
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • January 12, 1973
    ...or refusing a motion for summary judgment. Youngstown Sheet & Tube Co. v. Penn,363 S.W.2d 230 (Tex.Sup., 1962), and Crain v. Davis, 417 S.W.2d 53 (Tex.Sup., 1967). In Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, at page 319 (1961) the Court said: "In ruling on a motion for summary judgment o......
  • Shearer v. Mitchell, 260
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • August 31, 1967
    ...oral argument of the case in this Court, counsel for appellee contended that Mitchell was a surety. In the recent case of Crain v. Davis, 417 S.W.2d 53 [Tex.Sup.1967], our Supreme Court reversed a summary judgment and remanded the cause for trial. The Court held in part as 'We turn now to t......
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