Frankfurt's Texas Investment Corp. v. Trinity Savings & Loan Ass'n

• Decision Date: 03 March 1967
• Docket Number: No. 16804,16804
• Citation: 414 S.W.2d 190
• Court: Texas Court of Appeals
• Parties: FRANKFURT'S TEXAS INVESTMENT CORP., Appellant, v. TRINITY SAVINGS & LOAN ASSOCIATION et al., Appellees. . Dallas

Page 190

414 S.W.2d 190

FRANKFURT'S TEXAS INVESTMENT CORP., Appellant, v. TRINITY SAVINGS & LOAN ASSOCIATION et al., Appellees.

No. 16804.

Court of Civil Appeals of Texas Dallas.

March 3, 1967.

Rehearing Denied March 31, 1967.

Wayne A. Melton and David S. Curtis, Dallas, for appellant.

Warren Whitham, Oscar Mauzy, William Andress, Jr., Robert Damron, Dallas, for appellees.

DIXON, Chief Justice.

Our former opinion is withdrawn and the following opinion is substituted.

This is an appeal from a summary judgment in a garnishment suit filed by appellant Frankfurt's Texas Investment Corporation, hereinafter referred to as Frankfurt's Texas, against Trinity Savings & Loan Association, hereinafter referred to as Trinity. Appellant sought to attach funds on deposit with Trinity in a savings account styled 'C. Lynne Development Corporation and Victor Frankfurt, Trustee, or David Lee Frankfurt.' C. Lynne Development Corporation will hereinafter be referred to as C. Lynne.

Trinity answered that it had on hand a balance of $28,114.11 in said account at the time of filing its answer. Trinity interpleaded several parties, ¹ asked the court to determine the merits of their claims and to order payment of fund to the proper claimants.

At one time W. Ernest Wesch individually claimed an interest in Account No. 2469 but before the rendition of judgment he disclaimed any interest in the fund.

At the trial all claimants, including appellant, filed motions for summary judgment. Thereafter the court sustained motions for summary judgment of certain of the claimants and directed that the fund be distributed as follows:

(1) To garnishee, its costs, including an attorney's fee of $750.

(2) To S. G. Pappas and Mrs. Katherine Semos, $6,803.94 in payment of a prior judgment.

(3) To Philip Wilson, $5,698 in payment of a note secured by an assignment of part of the deposit.

(4) To appellant, the balance of the deposit amounting to approximately $15,500.

In determining the priority of the above claims the court applied the well established rule that in garnishment proceedings allowable claims which are prior in time are prior in right of payment. Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S.W. 863; Armengol v. Richter, Tex.Civ.App., 141 S.W. 1028 (writ dism.); Megargel Drilling Co. v. City Nat'l Bank in Wichita Falls, Tex.Civ.App., 352 S.W.2d 796 (ref. n. r. e.).

Only Frankfurt's Texas has appealed. And its appeal is limited. In its brief appellant says, 'To the extent this judgment allowed the claims of S. G. Pappas and Mrs. Katherine Semos, and Philip Wilson, to be classified on a priority superior to that of Frankfurt's Texas Investment Corp., Appellant herein, this appeal has been perfected * * *.' ² In its brief Frankfurt's Texas pays that the judgment of the trial court be reversed and rendered, or in the alternative that the cause be remanded for a new trial.

The parties stipulated that all papers and instruments filed in certain numbered causes in various district courts of Dallas County on or before December 2, 1965 were before the court in the instant case for all purposes subject to legal objections as to relevancy. These causes were either main suits or garnishment suits involving C . Lynne. The said papers and instruments have now been brought forward into the record before us on this appeal.

In points on appeal appellant takes the position that the court erred in rendering judgment in favor of Philip Wilson (1) because Wilson's claim is not supported by the pleadings or established by any form of proof; and (2) because Wilson's assignment of rights to the savings account is not valid.

Wilson's answer and plea in intervention are indeed in certain particulars defective as pleadings in a suit on a note secured by an assignment of interest. And in appellant's answer to Wilson's petition these defects were specifically described in a plea in abatement and a motion to dismiss. It was pointed out that Wilson's pleading failed to allege that the note was unpaid, or the date when due, or that demand for payment had been made. The note was not fully described nor was a copy of it attached to or made a part of the pleading.

But appellant's plea and motion apparently were never presented to the court for determination. Certainly the record contains no order showing that the court ever acted on them, or refused to act on them . Therefore, under Rule 90, Vernon's Texas Rules of Civil Procedure, they must be considered as waived and appellant will not now be heard to complain of the defects in Wilson's pleading. Rule 90, T.R.C.P. expressly states:

'Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and Brought to the attention of the judge in the trial court before * * * the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account.' (Emphasis ours.)

Both Rules 90 and 67, T.R.C.P. have been held to be applicable to situations similar to that which we have here. Hall v. Fowler, Tex.Civ.App., 389 S.W.2d 730 (no writ hist.); Olivares v. Service Trust Co., Tex.Civ.App., 385 S.W.2d 687 (no writ hist.); Hilley v. Hilley, Tex.Civ.App., 305 S.W.2d 204 (ref. n. r. e.); Andrews v. Austin Motor Truck Co., Tex.Civ.App., 259 S.W.2d 772 (no writ hist.); Murchison v. Post Ind. School Dist., Tex.Civ.App., 258 S.W.2d 229 (ref. n. r. e.); Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155 (no writ hist.); Weisenberger v. Lone Star Gas Co., Tex.Civ.App., 257 S.W.2d 331 (dism.); Coastal Bend Mutual Ins. Co. v. McLaren, Tex.Civ.App., 234 S.W.2d 116 (no writ hist.); Dillingham v. Associated Employers Lloyds, Tex.Civ.App., 233 S.W.2d 191 (no writ hist.); Stalnaker v. Howard, Tex.Civ.App., 230 S .W.2d 563 (dism.); Robinson v. Glasse, et al., Tex.Civ.App., 188 S.W .2d 598 (no writ hist.); Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Johnson v. Miller, Tex.Civ.App., 173 S.W.2d 280, 283, aff. 142 Tex. 228, 177 S.W.2d 249.

Rule 90 is applicable when a party, though he files exceptions, or motions, or a plea in abatement, does not bring his exceptions or motions, or plea in abatement to the attention of the judge, and no order is entered by the court disposing of them. Kirkman v. Alexander, Tex.Civ.App., 280 S.W.2d 365 (ref. n. r. e.) (plea in abatement); Lozano v. Kazen, Tex.Civ.App., 313 S.W.2d 894, 897 (no writ hist.); Polk v. Grogan's Wholesale & Retail Lumber, Tex.Civ.App ., 325 S.W.2d 201, 207 (no writ hist.); Webb v. Mitchell, Tex.Civ.App., 371 S.W.2d 754, 761 (no writ hist.); Talbert v. Herrera, Tex.Civ.App., 353 S.W.2d 948 (no writ hist.); Smith v. Pulliam, Inc., Tex.Civ.App., 388 S.W.2d 329 ref. n. r. e., Tex., 394 S.W.2d 791). The rule is applicable to suits on a promissory note, Continental Nat'l Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928. Appellant's point that appellee Wilson's pleadings are defective is overruled.

However, we must agree with appellant's contention that Wilson's claim and summary judgment have not been established by any form of proof. In this case the judgment recites that the court heard and considered 'the pleadings, depositions, admissions, stipulations and papers and instruments filed in connected cases so stipulated, affidavits on file in this cause, matters which the court may notice judicially and the statements of counsel * * *.'

No affidavits, depositions, or other documents were filed by Wilson in support of his motion for summary judgment. The defects in his pleading would not alone be sufficient to defeat his motion for summary judgment if his motion had support in the evidence; Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233, 237 (1956); Gonzales v. T.E.I.A., 408 S.W.2d 521 (Tex.Civ.App., Eastland, 1966); but pleadings alone without any supporting evidence will not support a summary judgment. Dillon et ux. v. Greenville Hospital Authority, 404 S.W.2d 956, 958 (Tex.Civ.App., Dallas, 1966); Texas State Board of Registration for Professional Engineers v. Trimble, 366 S.W.2d 124, 126 (Tex.Civ.App., El Paso, 1963, no writ hist.). It has been held that in a summary judgment proceeding where neither the original note nor a certified or sworn copy thereof was attached to plaintiff's pleadings or motion for summary judgment a defendant's general denial alone will raise an issue of fact as to whether plaintiff is the present owner and holder of the note unless plaintiff produces and offers the note sued on. Alexander v. Houston Oil Field Material Co., 386 S.W.2d 540, 543 (Tex.Civ.App., Tyler, 1965, writ ref. n. r. e.).

Wilson claims that an admission made by C. Lynne in a pleading entitles Wilson to judgment. The alleged admission is as follows:

'That on the 2nd day of June, 1965, C. LYNNE DEVELOPMENT CORP. pledged savings share account No. 2469 and physically delivered the certificate and passbook evidencing said account to Philip Wilson of Brady, Drake & Wilson to secure the payment of a Promissory Note in the sum of $5,000.00 contemporaneously authorized by the Board of Directors.'

We cannot agree with Intervenor Wilson for two reasons:

1. The alleged admission did not state that Wilson was still the owner or holder of the note at the time the pleading was filed on August 26, 1965 or on the date of the trial, or the due date of the note or that it had not been paid.

2. Even if the allegation were to be accepted as a complete admission by C. Lynne, it would not be binding on appellant Frankfurt's Texas. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App., Dallas, 1963); Justin McCarty, Inc. v. Ash, 18 S.W.2d 765, 768 (Tex.Civ.App., Beaumont, 1929, no writ hist.); St. Louis S. W. Ry Co. of Texas v. Bishop et al., 14 Tex.Civ.App. 504, 37 S.W. 764, 765 (1896, no writ hist.).

We sustain appellant's point that Intervenor Wilson's claim is not supported by any evidence.

In its second point appell...