Durrett v. Boger, 6530

• Decision Date: 16 November 1950
• Docket Number: No. 6530,6530
• Citation: 234 S.W.2d 898
• Parties: DURRETT et al. v. BOGER.
• Court: Texas Court of Appeals

Page 898

234 S.W.2d 898

DURRETT et al. v. BOGER.

No. 6530.

Court of Civil Appeals of Texas, Texarkana.

Nov. 16, 1950.

Lanham Croley, Thompson, Knight, Wright, Weisberg & Simmons and Sol Goodell, all of Dallas, Frank C. Bolton, Jr., J. N. Saye, H. P. Smead, Smead & Harbour, and J. T. Harris, all of Longview, Ben Goodwin, of Tyler, and Walter N. Jones and Jones & Jones, all of Mineola, for appellants.

Booth, Lockard & Jack, Shreveport, La., W. Edward Lee, L. L. James, Tyler, for appellee.

WILLIAMS, Justice.

Appellee, Curen Boger, the plaintiff below, in this action against many defendants, seeks a recovery of an undivided 1/8 interest in 101 acre tract of land out of the J. P. Moseley H. R. in Wood County and a like interest in the oil produced therefrom. The term 'defendants' so used in the discussion to follow is intended to mean and to include only R. Lacy, individually, and as trustee, and such others who answered with defensive pleadings and have appealed and not those who were severed out, disclaimed or made default.

After pleading a trespass to try title action under Rule 783, Texas Rules of Civil Procedure, plaintiff alleged in the second count of his petition that J. W. Durrett and R. Lacy, individually and as trustee, did by and through their agents on March 4, 1945, by fraudulent representations, procure from plaintiff a deed to the land in controversy and sought to have such deed cancelled because of the alleged fraudulent representations.

On January 20, 1950, the date a summary judgment for plaintiff for the interest and relief was entered and at all times during the pendency of this suit in the trial court, Rule 169, Texas Rules of Civil Procedure, pertinent to the points presented, reads: 'At any time after the defendant has made appearance in the cause, or time therefor has elapsed, a party may deliver or cause to be delivered to any other party or his attorney of record a written request for the admission by such party of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth by the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after delivery thereof or within such further time as the court may allow on motion and notice, the party to whom the request is directed delivers or causes to be delivered to the party requesting the admission or his attorney of record a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. * * *'

After the defendants had made appearances by filing their respective answers setting up various defenses, plaintiff through his attorneys delivered in December, 1946, to each attorney for the respective defendants a request for admission of 152 facts. In response thereto each of the defendants timely delivered their respective answers to the request for admissions. Plaintiff complied with all the provisions of Rule 169, supra, with respect to this demand for admissions. With respect to their answers returned in response to the demand for admissions, each defendant complied fully with the provisions of this rule with the exception as later herein pointed out.

On December 27, 1949, the date this cause was called for trial, the court disposed of certain defendants by dismissals or severances. Plaintiff then filed a motion for summary judgment grounded upon the asserted failure of defendants to make sworn answers to plaintiff's demand for admissions. The motions of defendants for leave to amend their respective answers to plaintiffs demand for admissions and in the alternative for an order extending the time for filing same to December 28, so they might be filed on the latter date were overruled. Plaintiff then introduced in evidence on December 28, his demand for admissions together with the 152 facts inquired about therein. The purported affidavits to the answers to the demand for admissions were also introduced in evidence for the limited purpose of showing they were defective and not in compliance with Rule 169, supra. The court concluded that none of the answers to requests for admissions were 'sworn to' in accordance with the rule and found the 152 facts set out in the judgment as admissions by the defendants. Based upon such conclusions of law and findings of fact the court granted the motion for summary judgment decreeing that the deed from plaintiff to J. W. Durrett and the deed from the latter to R. Lacy, be both cancelled and that plaintiff recover the title and possession of the interest sued for.

Each answer to the demand for admissions was made by an attorney for the respective defendants and, as stated in the respective affidavits, was made on 'information and belief,' but further stating that affiant 'had familiarized himself with the facts essential to making truthful answers and that he knows, or upon information believes the truth of the matters stated above'; or that affiant 'had familiarized himself with available facts, and the answers are true and correct so far as he knows or believes, and he believes them to be true'; or that from affiant's own knowledge and upon information which he has been able to obtain he believes the matters in such answers are true and correct.

It is to be observed that Rule 169, supra, requires a 'sworn statement' similar in effect to the phrase 'in writing and sworn to' as used in Rule 86, T.R.C.P., with respect to a plea of privilege. Under Rule 682, T.R.C.P., the petition for a writ of injunction is required to be verified by affidavit of applicant setting out a plain and intelligible statement of the grounds for relief. It is settled under our Texas decisions that an affidavit on information and belief are insufficient to meet the requirements of Rules 86 and 682. Rule 93, T.R.C.P., which deals with certain pleas to be verified, begins with the general heading that 'a pleading setting up any of the following matters, unless the truth...