Hughes v. Hughes

• Decision Date: 21 October 1971
• Docket Number: No. 7274,7274
• Citation: 473 S.W.2d 304
• Parties: Alice HUGHES, Individually and as Administratrix and as Guardian, Appellant, v. Paul N. HUGHES et al., Appellees.
• Court: Texas Court of Appeals

Page 304

473 S.W.2d 304

Alice HUGHES, Individually and as Administratrix and as Guardian, Appellant, v. Paul N. HUGHES et al., Appellees.

No. 7274.

Court of Civil Appeals of Texas,

Beaumont.

Oct. 21, 1971.

Mullinax, Wells, Mauzy & Collins, Dallas, Hugh O'Fiel, Beaumont, for appellant.

B. F. Whitworth, Sid S. Stover, Jasper, Walter S. Fortney, Fort Worth, for appellees.

DIES, Chief Justice.

Plaintiff below is the widow of James W. Hughes and sues on a promissory note executed by defendant (appellee) Paul N. Hughes, executed and delivered to her deceased husband for $45,000.00, and to foreclose on certain parcels of land conveyed to James W. Warner as Trustee, to secure the debt.

Defendant Paul N. Hughes answered denying consideration for the note.

Dewey Swilley, Ronald Swilley and Ricky Swilley intervened, alleging that on the 12th day of August, 1961, they obtained a judgment against James W. Hughes in the United States District Court, Eastern Division, Beaumont, in Civil Action No. 4298 for $49,255.30 plus interest and costs, and attaching a copy of the judgment to the petition for intervention. They further alleged that the judgment had never been satisfied and that intervenors had not recovered any monies or satisfaction under the same and that they were thereby judgment creditors of the estate of James W. Hughes, giving them the necessary interest to intervene.

Defendant First Security National Bank of Beaumont, Texas is mortgagee of O. D. Reeves and wife, Mary Nichols Reeves, grantees under deed dated November 3, 1967, from grantors, T. E. Inman and Paul N. Hughes. The land involved was a portion of that previously deeded by defendant, Paul N. Hughes, to secure his note given to James W. Hughes.

Defendants, Paul N. Hughes and First Security National Bank of Beaumont, moved for summary judgment. Intervenors were given notice of such hearing, but failed to answer or appear and, on January 28, 1971, the District Court 'ORDERED, ADJUDGED and DECREED that plaintiff Alice Hughes, Individually and as Administratrix of the Estate of James W. Hughes, Deceased, and as Guardian of the Estate of Emily Alicia Hughes, a Minor, and Intervenors Dewey Swilley, Ronald Swilley and Ricky Swilley take nothing of Defendants Paul N. Hughes, T. E. (Elmer) Inman, O. D. Reeves and wife Mary Nichols Reeves, and First Security National Bank of Beaumont, Texas and Marcus Dougharty, Trustee, * * *'

From this judgment intervenors have appealed, contending that the trial court erred in granting a summary judgment in that fact questions existed.

Appellee, Paul N. Hughes, contends no fact issue exists and that since intervenors did not file affidavits or present evidence or appear at the hearing for summary judgment, 'movant's evidence must be accepted as true.'

Appellees, First Security National Bank of Beaumont and Marcus Dougharty, Trustee, by cross-point urged:

(1) That this appeal is moot because Plaintiff, widow of James W. Hughes, did not appeal the summary judgment;

(2) That a judgment creditor of a deceased has no standing to sue a debtor of the deceased;

(3) A judgment creditor of a deceased cannot sue representatives of the estate or the debtors of the estate but must file a claim against the estate under the Texas Probate Code;

(4) The District Court and the Court of Civil Appeals have no jurisdiction over appellants' claim and that intervenors (appellants) are not proper parties in this suit and not entitled to recover in their own name or to appeal the summary judgment of the trial court.

We will consider the contentions of appellees, First Security National Bank of Beaumont and Marcus Dougharty, Trustee, first.

Rule 60, Texas Rules of Civil Procedure, provides as follows:

'Any party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party; and such intervenor shall, in accordance with Rule 72, notify the opposite party or his attorney of the filing of such pleadings within five days from the filing of same.'

The rule clearly requires parties opposing a petition in intervention to affirmatively contest the same before the trial court. No such contest was made here, nor did the trial court strike the intervention. Under such circumstances, we hold that objection to the intervention has been waived. Saulsbury v. Clay, 25 S.W.2d 200 (Tex.Civ.App., Amarillo, 1930, no writ). See also, Coffee v. William Marsh Rice University, 403 S.W.2d 340 (Tex.Sup.1966). It is, therefore, unnecessary for us to consider whether the intervention was proper had it been contested.

Since intervenors became a party, they became parties for all purposes, including the right of appeal. 1 McDonald, Texas Civil Practice (1965), § 3.48, p. 398.

We next consider the propriety of granting the summary judgment under Rule 166--A. The intervenors filed no affidavits, presented no evidence and, in fact, did not even appear at the hearing for summary judgment. Under such circumstances, some courts have applied waiver, saying the parties failing to file controverting affidavits or evidence were in no position to argue the existence of a genuine issue of fact. Lacy v. Carson Manor Hotel, 297 S.W.2d 367 (Tex.Civ.App., Dallas, 1956, error ref., n.r.e.); Holland v. Lansdowne-Moody Co., 269 S.W.2d 478, 481 (Tex.Civ.App., Waco, 1954, no writ); Fowler v. Texas Employers' Ins. Ass'n, 237 S.W.2d 373 (Tex .Civ.App., Fort Worth, 1951, error ref.).

'When a motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so * * *' Gulf, Colorado & Sante Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1958).

However, we recognize that every fact situation may not, in fairness, warrant imposing a waiver and that failure to file opposing affidavits is not necessarily fatal. Summary judgments are not granted by default but upon movant's discharge of his burden to show the absence of material facts. Hatter v. Worst, 390 S.W.2d 293 (Tex.Civ.App., Amarillo, 1965, error ref., n.r.e.).

In this case, the intervenors being judgment creditors of plaintiff's deceased husband, it is probable that it would be difficult, if not impossible, for them to obtain controverting affidavits.

Nevertheless, they could have appeared before the District Court at the hearing for summary judgment and made similar contentions to those presented in this appeal.

We recognize and approve that summary judgments should be applied with caution; Street v. Hannasch, 410 S.W.2d 941 (Tex.Civ.App., San Antonio, 1967, no writ); King v. Rubinsky, 241 S.W.2d 220 (Tex.Civ.App., Waco, 1951, no writ); and that the burden of demonstrating that no genuine issue as to any material fact exists rests upon the parties filing the motion for summary judgment. Pioneer Casualty Company v. Bush, 457 S.W.2d 165, 168 (Tex.Civ.App., Tyler, 1970, error ref., n.r.e.).

Defendant Paul N. Hughes testified by deposition that prior to executing the note in question, he had applied for a loan from the Small Business Administration in the amount of $45,000.00 and that the Small Business Administration had requested that plaintiff's deceased husband, James Hughes, endorse this note; that because of this, he, defendant Hughes, 'went and had this deed of trust and note made to him for this amount'; that later, the Small Business Administration determined that only $28,000.00 was needed and without James Hughes' endorsement; that James Hughes never endorsed the loan and that he, defendant, Paul N. Hughes, received nothing as a result of the note and the deed of trust.

Plaintiff Alice Hughes, widow of James W. Hughes, filed an affidavit stating, among other things, as follows:

'The Note sued on herein, a copy of which is attached to Plaintiff's Original Petition in this cause, was found by me in my husband's papers after his death. Such Note does not show that it has been paid and does not show that any amount whatsoever has been paid on it. I have not been able to find any release of the Note or the Deed of Trust securing it, which Deed of Trust is of record in the Deed of Trust Records in Newton County.

'I am not able to say why said Note was given by Paul N. Hughes to my husband and am not familiar with the transaction in which such Note was executed by Paul N. Hughes.

'Since the death of my husband Paul N. Hughes has not paid to me any sum of money as a payment on said Note and so far I am concerned said Note is still unpaid and is an obligation of Paul N. Hughes.'

We have carefully considered the evidence before the trial court in the hearing for summary judgment. The failure of intervenors to controvert this evidence and appear at the hearing requires that we accept as true all of such facts for the purpose of this appeal. Railroad Commission v. Sample, 405 S.W.2d 338 (Tex.Sup.1966). This evidence establishes as a matter of law that there is no genuine issue of fact as to the essential elements of defendant Paul N. Hughes' contentions.

The order granting the summary judgment is affirmed.

KEITH, Justice (concurring).

I concur in the result reached and in the affirmation of the case. I do not, however, do so from a review of the 'evidence' considered by the trial court upon the motion for summary judgment. Consequently, I do not join in the conclusion that '(t)his evidence (the deposition of Paul Hughes) establishes * * * the essential elements of defendant Paul N. Hughes' contentions.' I am in complete accord with the rule announced in Railroad Commission v. Sample, 405 S.W.2d 338, 339 (Tex.Sup.1966), wherein the Court said:

'Appellees have not controverted the facts set out in the answer to their motion for summary judgment and the...