De La Garza v. Ryals, 15238

• Decision Date: 13 April 1951
• Docket Number: No. 15238,15238
• Citation: 239 S.W.2d 854
• Parties: DE LA GARZA v. RYALS.
• Court: Texas Court of Appeals

Page 854

239 S.W.2d 854

DE LA GARZA v. RYALS.

No. 15238.

Court of Civil Appeals of Texas, Fort Worth.

April 13, 1951.

Rehearing Denied May 11, 1951.

Jim Forest and McKool & McDaniel, all of Dallas, for appellant.

Coke & Coke, Rosser J. Coke, Jr., and Walter B. Branan, all of Dallas, for appellee.

CULVER, Justice.

This appeal lies from an order of the district court sustaining appellee's motion for summary judgment. Appellant E. de la Garza instituted this suit, alleging that in 1947 he and appellee H. T. Ryals associated themselves together as joint adventurers in nine separate construction jobs, agreeing to share equally the profits and losses. Appellant claims that the appellee is indebted to him in the sum of $7,000, representing the balance owing to him of his share of the profits realized from these joint undertakings, and prays for an accounting and judgment.

Appellee filed an answer raising numerous exceptions to the petition and denying any indebtedness to appellant, but on the contrary, alleged that appellant was indebted to him in the sum of $900.

Appellee also filed his motion for a summary judgment, alleging that there was no genuine issue of fact to be tried and that appellee was entitled to a summary judgment, that appellant take nothing and that appellee be granted judgment against appellant for the sum of $900. His affidavit was attached to this motion together with copy of an audit of the joint venture records of Ryals and de la Garza. Appellant de la Garza filed an opposing affidavit. At the hearing, appellee Ryals objected to a consideration of appellant's response or opposing affidavit on the ground that same was insufficient. Appellant thereupon asked leave to amend his affidavit by including in such amendment only the allegations of plaintiff's first amended original petition, which was refused. The court then proceeded to grant the motion and enter summary judgment, finding 'that the law and the facts, as shown by said motion for summary judgment, are in favor of defendant, H. T. Ryals * * * and that no genuine issue exists.'

The first three points upon which appellant predicates his appeal are to the effect that the court erred in finding as a matter of law that there were no genuine issues of fact to be tried. His fourth point is that the court erred in granting a summary judgment for appellee on his cross action. Fifth, that the court erred in refusing appellant leave to file an amended answer to appellee's motion which would have included all of the allegations of plaintiff's first amended petition; and sixth, that appellee's motion for a summary judgment was insufficient as a matter of law.

All of appellee's counterpoints relate generally to the asserted insufficiency of appellant's affidavit in opposition to appellee's motion.

We will consider first the fifth point raised by appellant. The motion for a summary judgment was filed on September 18th, 1950, and a hearing was set for September 29th, giving ten days' notice as required by Rule 166-A. Appellant's response was filed on September 28th and on the 29th he procured a postponement of the hearing to October 13th. The objections of appellee directed to 'the insufficiency and lack of content' of the answering affidavit of appellant were filed on the day of the hearing, Cotober 13th. Prior to any ruling by the court on such objections, appellant asked leave to amend his answer and affidavit to include only the allegations of fact set up in his first amended petition in order to meet such objections and such request was denied. It seems to us that the court erred in overruling this request. No material delay would have resulted. Appellee could in no wise have been surprised or prejudiced and it is reasonable to presume that the appellant would have sworn to the matters of fact plead. The petition in fact was quite lengthy and went into much more detail than did the opposing affidavit. The petition, after all, under our rules of pleading is principally a recital of the facts which give rise to a cause of action. 166-A(e), Rules of Civil Procedure, provides: 'The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.' Even on a formal trial and after announcement of ready, while the privilege of filing an amendment is within the discretion of the court, nevertheless under certain circumstances the refusal is considered an abuse of such discretion. Ford v. Liner, 24 Tex.Civ.App. 353, 59 S.W. 943; Greeley-Burnham Grocery Co. v. Carter, Tex.Civ.App., 30 S.W. 487; Caswell v. J. S. McCall & Sons, Tex.Civ.App., 163 S.W. 1001. We sustain appellant's fifth point.

This then brings us to the controlling question which is, was it established on the hearing that there is no genuine issue as to any material fact. The burden of proof would seem to be upon the movant in this proceeding, as said in Sarnoff v. Ciaglia, 3 Cir., 165 F.2d 167, 168, 'All doubts as to the...