Green v. Smart

• Decision Date: 04 March 1960
• Docket Number: No. 15583,15583
• Citation: 333 S.W.2d 880
• Parties: J. W. (Bill) GREEN, Adm'r of the Estate of Mollie E. SMART, Deceased, Appellant, v. A. C. SMART, Appellee.
• Court: Texas Court of Appeals

Page 880

333 S.W.2d 880

J. W. (Bill) GREEN, Adm'r of the Estate of Mollie E. SMART, Deceased, Appellant, v. A. C. SMART, Appellee.

No. 15583.

Court of Civil Appeals of Texas, Dallas.

March 4, 1960.

Rehearing Denied April 1, 1960.

Abernathy & Orr, McKinney, for appellant.

Allen Clark, Greenville, for appellee.

YOUNG, Justice.

Summary judgment proceedings, pursuant to Rule 166-A, Texas Rules of Civil Procedure. Prior thereto, plaintiff Smart had sued the administrator on three promissory notes aggregating $3,880 plus interest and attorney's fees, rejected by said administrator, who had answered by general denial. Then followed appellee's motion for summary judgment, alleging insufficiency of affirmative defenses and want of genuine issues on any material fact, with hearing set for September 26, 1958. Hearing was had on that day with judgment for plaintiff as prayed, same reciting however as 'signed and entered this the 21st day of October 1958'; the administrator duly appealing.

Appellant's answer to the motion for summary judgment, filed September 24, 1958, alleged the following in substance:

First attaching the affidavit hereinafter quoted; then stating in unsworn pleading that he had reason to believe that at time of execution of notes, the maker Mollie E. Smart was not competent to execute same, but that he cannot make affidavit on personal knowledge to said facts; and praying that the court order a continuance to permit affidavits to be obtained and depositions taken and other discovery measures to be pursued before making final disposition of the motion; that he is the third person to hold office as administrator, not having been personally acquainted with decedent; that when this suit was filed, the estate was not represented by counsel, one being employed on September 22; that the motion should be in all things denied, but in the alternative, asking for a continuance of the proceedings to allow 'this defendant and his attorney ample opportunity to pursue discovery procedures open to him to determine all of the defenses available to the estate.'

The affidavit attached to said answer reads as follows:

'State of Texas

'County of Hunt

'Before Me, the undersigned authority, on this day personally appeared J. W. 'Bill' Green, who after being by me duly sworn, on his oath, deposes and says: That he is qualified and acting administrator of the Estate of Mollie E. Smart, Deceased, and that in such representative capacity he is the defendant in the Cause of 'A. C. Smart v. J. W. 'Bill' Green, Administrator of the Estate of Mollie E. Smart, deceased, No. 26,374, in the District Court of Hunt County, Texas', and on personal knowledge he states that the plaintiff advised this Affiant that his alleged cause of action grew out of a supposed debt with his Father, who had been dead since about the year 1930, and for which debt Mollie E. Smart was not, during her life time, liable, and that therefore, the basis of plaintiffs alleged cause of action is not supported by a valuable consideration; that Affiant is competent to testify to the matters stated herein.'

A Statement of Facts reflecting this entire proceeding, certified to by the Honorable Elisha Myers, Judge, 62nd Judicial District Court, Hunt County, Texas, appears as follows:

'In accordance with the provisions of Rule 377(d), Texas Rules of Civil Procedure, it having been made known to me that the parties herein have failed to agree upon the Statement of Facts, the following is submitted by me as a true and correct Statement of Facts, both on the hearing of the Motion For Summary Judgment filed by the plaintiff and the Motion For New Trial filed by the defendant:

'On The Motion For Summary Judgment

'(1) The parties, upon the hearing, stipulated that the defendant, J. W. (Bill) Green, is the duly appointed, acting and qualified administrator of the Estate of Mollie E. Smart, deceased; that he was appointed by the County Judge of Hunt County, Texas; that Mollie Smart and Mrs. J. W. Smart were one and the same person; that the claim of the plaintiff, A. C. Smart, was presented to the administrator on the 1st day of November, 1957 and was rejected by him on the 25th day of April, 1958.

'(2) Plaintiff introduced in evidence the claim of plaintiff, A. C. Smart, a copy of which is hereto attached and marked Exhibit 1.

'On the Defendant's Motion For New Trial

'(1) Defendant introduced in evidence a copy of his proposed amended answer, as shown by Exhibit 2 attached, which was in the possession of the Court prior to entry of judgment

'The above and foregoing constitutes a full, complete, and accurate Statement of Facts introduced upon the respective hearings above referred to.'

Exhibit 1 above mentioned consisted of plaintiff's sworn claim as filed in Hunt County Probate Court, to which were attached photostats of the notes now in suit; their presentment to the defendant administrator on November 1, 1957, and written rejection by the latter on April 25, 1958. Exhibit 2 was First Amended Answer of the Administrator dated as October 1, 1958 and consisting of the following: (1) Motion to Dismiss Plaintiff's petition for Summary Judgment because not verified as required by Rule 166-A; (2) Sworn plea of non est factum by the administrator relative to the three notes allegedly executed by deceased and asserting that affiant 'has reason to believe and does believe that such instruments were not executed by decedent or by her authority'; (3) Further answer was by general denial and three alternative unsworn pleas; (a) that if deceased Mollie Smart executed the notes, she was induced to sign same under mistaken belief that it was as accommodation endorser on notes wherein the plaintiff was the principal obligor that were payable to some third party; it not being her purpose or understanding to execute a note payable to plaintiff; (b) that decedent executed the notes, if she did so, thinking that the promissory notes were payable from the plaintiff to her and not from her to plaintiff; (c) that at the time decedent executed the notes, if she did, she did not possess the mental capacity and ability to understand the nature of her act and hence not accountable therefor.

Points of appeal will be summarized, (1) of court error in failing to consider defendant's Amended Answer; (2) of error in granting plaintiff's motion for summary judgment when the court had before it defendant's amended answer raising the issue of non est factum; (3) and of mistake; (4) and of decedent's lack of mental capacity; (5) in grant of summary judgment when defendant had raised issues of fact; (6) in court's failure to grant defendant's motion for continuance; (7) in failing to give defendant a complete hearing on the motion for summary judgment; and (8) in grant of plaintiff's motion when his petition and pleading were not verified as required by Sec. 313, Texas Probate Code, V.A.T.S.

Appellee's counterpoints will likewise be outlined: (1) that defendant's amended answer was not before the court at time of hearing the motion for summary judgment nor at time of rendition of same and therefore could not have been considered by the court; (2) no genuine issue of a material fact was raised by defendant in affidavit or otherwise in answer to plaintiff's said motion for summary judgment; (3) that defendant's unsworn answer to plaintiff's said motion was insufficient as a motion for continuance, and (4) that a complete hearing was had on plaintiff's motion for summary judgment; and there being no affidavit filed by defendant raising any defense, no court error is shown or appears in the record, and (5) Section 313, Texas Probate Code does not require plaintiff's pleadings in a suit brought on a rejected claim to be verified.

Preliminary to a discussion of the foregoing points, we should consider the nature and effect of defendant's original answer to plaintiff's motion for summary judgment filed prior to the hearing of September 26 1958. It consisted generally of unsworn pleading invoking subdivision (f) of Rule 166-A, which provides:

'(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.'

To such original answer was attached the administrator's affidavit above quoted. Manifestly this affidavit states a conclusion of law (erroneous as appellee contends) even if the administrator had testified to the facts recited. See Article 5933, Sec. 24, Vernon's Ann.Civ.St.; Bliss v. City of Fort Worth, Tex.Civ.App., 288 S.W.2d 558; George v. Union Bank and Trust Company of Fort Worth, Tex.Civ.App., 220 S.W.2d 686. At any rate the suggested defense of failure of consideration was abandoned by appellant in this later amended answer about which the entire controversy centers.

Intervening September 26, 1958, date of the hearing, and October 21st, when the judgment was signed, app...