Empire Finance Serv., Inc. v. Western Preferred L. Ins. Co.
| Decision Date | 17 December 1970 |
| Docket Number | No. 4968,4968 |
| Parties | EMPIRE FINANCE SERVICE, INC. and Swift L. Lindley, Appellants, v. WESTERN PREFERRED LIFE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Gillespie & McClendon, Wm. J. Gillespie, Lubbock, for appellants.
Akin, Gump, Strauss, Hauer & Feld, Michael Lowenberg, Dallas, for appellee.
The only question in this summary judgment appeal is whether plaintiff's proof is sufficient to establish as a matter of law the amount of offsets to which defendant is entitled so as to show there is no genuine issue of material fact. In our opinion the proof will not authorize summary judgment, and we reverse.
Plaintiff sued on a note and a debenture. All issues concerning these instruments, except the amount due, are undisputed. Recovery by plaintiff is otherwise authorized thereon. The original petition was verified by the affidavit of plaintiff's attorney. It made no reference to offsets, except the affidavit recited that all just and lawful offsets and credits had been allowed. Defendants' verified answer alleged that credit had not been given for reserves, which it had been agreed would be credited; that defendant did not know the correct amount of reserves which should be credited because these were in plaintiff's exclusive possession; and an accounting was demanded.
Plaintiff then filed a motion for summary judgment stating defendant was entitled to credit for reserves in the net sum (after deducting claims paid and cancellations, of $3,326.56, and after adding itemized interest charges and attorney's fees) of $37,883.64.
The motion alleged that 'Plaintiff and its certified public accountant' have examined plaintiff's records and have determined the recited information concerning reserves, which were assigned as security, and which 'are to be applied against the total amounts due to plaintiff.'
There appears in the transcript an affidavit by plaintiff's secretary-treasurer which refers to a motion for summary judgment but it is dated nearly a year before the present motion was filed. Attached to the filed motion is an affidavit by the plaintiff's secretary-treasurer stating that 'to my personal knowledge all of the factual allegations' contained in the petition and motion 'are true and correct'.
The recital in the motion that 'plaintiff' has examined the records and determined the amount of reserves, of course, is a meaningless...
To continue reading
Request your trial
-
Nichols v. Smith, 17365
...4 McDonald's Texas Civil Practice, Sec. 17.26.5, notes 84 and 88 at pages 146 and 147; and Empire Finance Serv. v. Western Preferred L. Ins. Co., 461 S.W.2d 489 (Waco Tex.Civ.App., 1970, writ ref.). When the rules laid down in the above cited cases relating to the character of evidence that......
-
McCrary v. City of Odessa
...which we rejected in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1963), and Empire Finance Service, Inc. v. Western Preferred Life Ins. Co., 461 S.W.2d 489 (Tex.Civ.App.1970, writ ref'd). City of Odessa failed to establish its right to a summary judgment by reason of its defens......
-
Audiomedia, Inc. v. Rollins Outdoor Advertising, Inc.
...as to the matters stated therein. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961); Empire Finance Service, inc. v. Western Preferred Life Ins. Co., 461 S.W.2d 489 (Tex.Civ.App.--Waco 1971, writ ref'd); Bestwall Gypsum Division, Georgia-Pacific Corp. v. Padgett Bros. Drywall, 425 S.W.2d 84......
-
Fulenwider v. City of Teague, 10-84-105-CV
...Agri-Service Corp., CCA (Amarillo) NWH, 641 S.W.2d 400; Empire Finance Service v. Western Preferred Life Ins. Co., CCA (Waco) ref'd, 461 S.W.2d 489. Such sworn statements do not meet the requirements of Rule 166-A TRCP that the affidavits in support of the motion shall set forth such facts ......