Panola County Com'rs Court v. Bagley

• Decision Date: 09 June 1964
• Docket Number: No. 7558,7558
• Parties: ., Appellants, v. Lynn BAGLEY et al., Appellees. Court of Civil Appeals of Texas, Texarkana
• Court: Texas Court of Appeals

Page 878

380 S.W.2d 878

PANOLA COUNTY COMMISSIONERS COURT et al., Appellants, v. Lynn BAGLEY et al., Appellees.

No. 7558.

Court of Civil Appeals of Texas, Texarkana.

June 9, 1964.

Rehearing Denied June 30, 1964.

E. C. Winfrey, LeRoy LaSalle, J. E. Jackson, Carthage, for appellants.

Gordon Wellborn, Houston, Phenix, Keeling & Wilder, Henderson, for appellees.

FANNING, Justice.

A suit for permanent injunction. Lynn Bagley and 5 other resident taxpayers of Panola County, Texas, sued Panola County, Texas, the Commissioners Court of said county, County Judge Winfrey, County Commissioners Furrh, Waits, Rich and Holmes and County Engineer Marshall of said county, seeking to enjoin defendants and their employees from using any of the county owned road equipment, machinery, materials or employees for private purposes.

Plaintiffs' motion for summary judgment was granted and defendants' cross-motion for summary judgment was denied. Defendants have appealed.

Plaintiffs-appellees in their pleadings alleged to the effect that over a period of the last several years Panola County equipment, materials and labor had been used for the private benefit of individual landowners and taxpayers and that such practice would continue unless enjoined to the irreparable damage and injury to plaintiffs, that plaintiffs had no adequate remedy at law, that defendants constituting the Commissioners Court of Panola County had entered into a scheme whereby each commissioner may use any and all of the machinery, equipment, materials and employees of Panola County for such private purposes as the commissioners should desire to use them. In addition to making general charges against the defendants, the plaintiffs in their pleadings alleged 28 specific instances of purported illegal and improper use of public materials, labor and equipment on private property. Plaintiffs-appellees sought the entry of a summary judgment on substantially the above stated grounds and in their motion for summary judgment stated that their motion was based upon: 'The pleadings on file in this action; and the oral depositions of plaintiffs and defendants which are incorporated herein by reference as supporting affidavits to this motion.'

Defendants replied to said motion for summary judgment, filing a sworn denial of violation of any law or laws, etc., and among other things stating: 'Further answering herein, Defendants deny that they have in any manner engaged in any improper practice or law violation in the performance of their duties and obligations as provided by law, but if they be mistaken as to the law in regard to the performance of their duties as public officials, such mistake has been an unintentional error of judgment, and if this Honorable Court finds any practice followed by Defendants to be in violation of any law or an improper exercise of judgment and discretion vested by law in Defendants, both of which Defendants deny they have violated, such practice will be discontinued and Defendants say that they have not and will not knowingly violate any law of this State as alleged by Plaintiffs in their said Petition and Motion for Summary Judgment.' Defendants also filed 26 affidavits countering various allegations of plaintiffs and also filed a cross-motion for summary judgment in their favor. Defendants-appellants later filed a supplemental pleading further replying to plaintiffs-appellees motion for summary judgment and seeking by cross-motion a summary judgment in their favor and attached four additional supporting affidavits thereto.

Plaintiffs-appellees filed a first supplement to their motion in affidavit form which affidavit was made by Lynn Bagley, one of the Plaintiffs, which reads in part as found below. ¹ Defendants-appellants also filed a second supplemental pleading to their reply to plaintiffs' motion for summary judgment and also in support of their cross-motion for summary judgment.

At the time of the hearing on the motion for summary judgments there was on file in the District Clerk's office the pleadings of the parties, plaintiffs-appellees motion for summary judgment and supplement and the sworn denials and affidavits attached by defendants-appellants to their replies and motions and supplements above referred to and the depositions of the following persons, to-wit: Lynn Bagley, W. Hewey Bagley, A. D. Martin, D. V. McMillan, Dan Sistrunk and Jim Bob Wallace, the six plaintiffs, and defendant E. C. Winfrey, County Judge of Panola County, Texas.

The depositions of the six plaintiffs have been examined. While much of the deposition testimony is apparently based upon hearsay and investigation of others it is our view that such depositions do raise some issues of fact. However the plaintiffs are interested witnesses and their credibility is for a trier of the facts. These depositions while raising fact issues for a trier of the facts, are not conclusive and certainly are not sufficient to authorize the granting of a summary judgment in this cause, and more especially so in view of the controverting matters set up by defendants-appellants.

The deposition of County Judge Winfrey in effect denies that any law violations had occurred and raises issues of fact with reference to this matter and it is our further view that such deposition also raises an issue to be determined at least by a trier of the facts as to whether a permanent injunction is required as to whether defendants would discontinue any past practices found illegal by the trial court. We are also of the further view that the above referred to sworn statement of defendants to the effect that if they were mistaken in their denial of any law violations, that such mistake had been an unintentional error of judgment, and that if the court found that any practice followed by defendants to be in violation of law or an improper exercise of judgment, such practices would be discontinued, would raise an issue to be determined by a trier of the facts as to whether it was necessary to issue a permanent injunction.

The thirty affidavits filed by defendants-appellants dispute in the main the specific law violations charged.

The depositions of defendants Rich, Homes, and Waits, County Commissioners of Panola County, Texas, and of defendant Marshall, County Engineer, of Panola County, Texas, were not signed by said defendants and were not sworn to by said defendants (they contending that the depositions were in many instances not correct) and said depositions were never filed by the District Clerk of Panola County, Texas. These depositions were apparently taken on July 19, 1962, by the court reporter who certified to them on August 18, 1962. Said depositions were not sent up to this court as a part of the original record, apparently because they had not been filed with the District Clerk and did not bear the file mark of the district clerk.

However, after submission of this cause defendants-appellees filed a sworn motion with the District Court of Panola County, Texas, for certification of the depositions of the defendants Rich, Holmes, Waits and Marshall. Attached to the motion are certification of the court reporter and of the trial judge, all of which have been sent up to this court. Appellants have filed a sworn motion to strike the late filing of said above referred to depositions and said certificate of the trial judge and among other things dispute the factual accuracy of the depositions above referred to and also contest the right of same to be filed as a part of the appellate record in this cause.

It appears from appellees' sworn motion for certification, with the attached certificate of the court reporter, the certificate of the trial judge and from appellants' sworn motion to strike, that there are factual questions as to whether the depositions of Holmes, Waits, Rich and Marshall were filed in the trial court, whether they were introduced in evidence in the trial court, and whether or not the depositions which said defendants refused to sign because they contended and swore that they were in many instances not correct, were correct or not. There also arise legal questions as to whether said depositions should be considered by this court as a part of the appellate record in this cause.

The issue in a summary judgment proceeding is whether or not there is a genuine issue of fact in the case. And in determining this issue the rule with respect to instructed verdict cases is applicable in that the evidence is viewed in the light most favorable to the party opposing the motion. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.

In Gaines v. Hamman, supra, it is stated in part as follows:

'Rule 166-A, Texas Rules of Civil Procedure, provides that a summary judgment '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.' The record of a summary judgment proceedings then consists of the pleading whose office it is to outline the claims and defenses of the respective parties, the depositions and admissions on file and affidavits submitted either in support of or opposing the motion. With the exception of the pleadings it is not essential that any or all of the other possible components of the summary judgment record be present. While admissions on file may be likened to pleadings and considered as written judicial admissions, there is no basis for giving controlling effect to a deposition as compared to an affidavit. Neither does the fact that the deposition is more detailed in some respects than the affidavit vest it with dominant authority, provided of course that the affidavit possesses the necessary requisites prescribed by this Court in Tobin...