King v. Rubinsky, 2968

• Citation: 241 S.W.2d 220
• Decision Date: 14 June 1951
• Docket Number: No. 2968,2968
• Parties: KING et ux. v. RUBINSKY.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 220

241 S.W.2d 220

KING et ux. v. RUBINSKY.

No. 2968.

Court of Civil Appeals of Texas, Waco.

June 14, 1951.

Orville Jobe, O. David Goodwin, Waco, for appellants.

F. R. Valentine, Q. Z. Valentine, Waco, for appellee.

LESTER, Chief Justice.

This suit was filed below by Morris Rubinsky on May 15, 1950, in the form of trespass to try title against Paul King and wife. For convenience the parties will be referred to as they appeared in the lower court.

On May 25th the defendants answered with a plea of not guilty and the three years statute of limitation, and by way of cross-action pleaded a sales contract entered into between the plaintiff and the defendants on July 31, 1945, by the terms of which the defendants were to pay the sum of $5000 for said property; $500 was paid in cash and the defendants executed their note in the sum of $4500 for the balance, which balance was to be paid at the rate of $50 per month. Out of said installment payments the interest, insurance and taxes were to be deducted, and the balance applied to the principal; and the contract further provided that upon payment by the defendants of $1000 upon the principal, which included the $500 cash paid, the plaintiff agreed to execute to the defendants a general warranty deed conveying the property to them. Defendants alleged that they had paid the sum of $1000 on the principal prior to the time that they defaulted in their installment payments, and that plaintiff had breached the provisions of said contract prior to their default in failing to execute said warranty deed; that the reasonable market value of the property when the contract was entered into was $5000 and at the time of the breach by the defendants the same was of the value of $7500, and asked to be awarded the sum of $2500 as damages. They also alleged that at the time plaintiff breached the contract by failing to execute said deed they had paid to him the sum of $1950, and prayed for the return of said sum, with interest at the rate of six per cent per annum.

On June 10, 1950, the plaintiff answered defendants' cross-action with a general denial. On September 13, 1950, the plaintiff filed his first amended original petition, in which he sued in trespass to try title, and in the alternative upon the sales contract and note; alleging that defendants defaulted in their payments in that they had failed to make any payments since December 8, 1949, and by reason of such default he had exercised his option under the contract and note and had rescinded the same and declared all payments made to him by the defendants under such contract and note to be rent and liquidated damages. On the same date of the filing of his amended petition plaintiff filed a motion for a summary judgment under Rule 166-A, Rules of Civil Procedure, alleging that there was no genuine issue as to any material fact and that the plaintiff was entitled to a judgment as a matter of law, and based his motion upon the following: (a) plaintiff's first original amended petition; (b) defendants' original answer and cross-action; (c) plaintiff's original answer to defendants' cross-action; and (d) plaintiff's affidavit as to the facts and circumstances surrounding his cause of action. In his affidavit attached to his motion the plaintiff set out the execution of the sales contract and note, the default in installment payments since December 8, 1949, and also stated that as provided by said contract he had rescinded the same and had declared such payments made under such contract upon the note to be rent.

The motion was set for hearing by the court, service was had upon the defendants and a hearing was held on October 10th. On the day of said hearing and prior thereto the defendants filed their motion and affidavit for judgment on their cross-action, based on plaintiff's original petition, defendants' original answer and cross-action, plaintiff's first amended original petition, affidavit of the plaintiff and affidavit of the defendants. The motion was supported by the affidavit of defendant Paul King, in which he stated that he made the payments in compliance with the contract and had paid more than $1000 to Morris Rubinsky, and that he had never received a deed to said property; that under the terms of the contract of sale he was entitled to a deed and had been entitled to a deed since paying the sum of $1000. He further stated that he was acquainted with the value of real estate in this city and the house and lot sued for was of the value of $7500.

Plaintiff orally objected to the defendants' motion and affidavit on the ground that the same had not been filed prior to the day of hearing as provided by Rule 166-A, and was therefore too late, and moved the court to strike said motion and affidavit. The court sustained said objection and struck both the motion and the affidavit. Plaintiff thereupon introduced the contract and sales note. The court then asked plaintiff's counsel if he had anything, to which he replied, 'No, Sir'. The court proceeded to enter judgment for the plaintiff for the title and possession of said property and ordered writ of restitution to issue.

Rule 166-A, TRCP, in part provides:

'(a) For Claimant. A party seeking to recover upon a claim, counter-claim, or cross-calim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavts for a summary judgment in his favor upon all or any part thereof.

'(b) For Defending Party. A party against whom a claim, counter-claim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

'(c) Motion and Proceedings Thereon. The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

'(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.'

The above rule was adopted by the Supreme Court and took effect March 1, 1950, and is substantially the same as Federal Rule 56, 28 U.S.C.A. It has been in effect so short a time that the appellate courts of this state have construed the rule in only two instances: Haley v. Nickels, Tex.Civ.App., 235 S.W.2d 683, and Sidor v. Dreeben, Tex.Civ.App., 236 S.W.2d 841. Those cases are not exactly in point with the questions raised at bar, so we look to the federal decisions for construction.

The U. S. Supreme Court, in Sartor v. Arkansas Natural Gas...