Perkins v. Crittenden

• Decision Date: 07 October 1970
• Docket Number: No. B--1920,B--1920
• Parties: M. R. PERKINS et al., Petitioners, v. Rex CRITTENDEN, Respondent.
• Court: Texas Supreme Court

Page 565

462 S.W.2d 565

M. R. PERKINS et al., Petitioners, v. Rex CRITTENDEN, Respondent.

No. B--1920.

Supreme Court of Texas.

Oct. 7, 1970.

Lawrence Fischman, Dallas, for petitioners.

Wright & Barber, Fred M. Misko, Jr., Grand Prairie, for respondent.

GREENHILL, Justice.

Rex Crittenden obtained a summary judgment against M. R. Perkins and C. C. Carroll, Jr., on a promissory note executed by them to Crittenden. The Court of Civil Appeals affirmed. 447 S.W.2d 427. We reverse. We hold that it was error to render summary judgment on the note because (1) a copy of the note, not the original, was attached to the petition, and (2) instead of accompanying the copy of the note attached to the petition with a sworn affidavit as prescribed by Rule 166--A(e), it was simply acknowledged; i.e., the notary certified that Crittenden executed 'the same' for the purposes and consideration therein expressed. ¹ In the fact of a general denial, there was therefore no summary judgment proof that Crittenden was the owner or holder of the note.

A function of the required affidavit and the sworn or certified copy of the note is to furnish some reliable proof of the allegations of the plaintiff's petition including the ownership of the note and to evidence that he is the holder of the note. Te petition does not even specifically allege this. It has to be inferred from the allegation that defendants are indebted to plaintiff because of the note. The purported 'affidavit' of Crittenden later discussed says 'on his oath,' that 'I have read the plaintiff's original petition and it is true and correct in its entirety.' The deposition of Crittenden taken after the filing of the petition, instead of supporting Crittenden's position and the judgment of the trial court, actually served as a contradiction. In his deposition, Crittenden testified under oath that he had Not read his pleadings, was Not familiar with them at all, and that he did Not know what his lawyer had alleged. ²

Although there is testimony in the deposition about the note, the facts surrounding its execution and delivery, some payments on the note, and the amount owed on it (the amount of the debt still owed), no question was asked and no specific testimony was given that Rex Crittenden, the plaintiff, was the owner or holder of the note.

There is good reason for requiring, as Rule 166--A(e) does, that if the original of a negotiable promissory note is not attached and brought before the court, that a sworn or certified copy be attached. If only an unverified copy is attached, the original may be somewhere else in the hands of an innocent holder; and the general denial of the defendant places the burden on the plaintiff to prove that he is the owner or holder of the note. Otherwise, the maker may have to pay the same note twice.

The problem of the failure, on motion for summary judgment, to attach the original or sworn copy of a note was before us in Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162 (Tex.1963). The Court indicated that it was disturbed by this failure, but concluded that the point had not been raised or preserved in the Court of Civil Appeals. It was assumed to be error, but not fundamental error. The holidng was that it was late to raise the question for the first time in this Court.

The question was preserved here, however; nd the reasoning and authorities of the able dissent in Larue in the failure to attach the note or a properly authenticated copy of it, and the effect of the general denial, are directly in point here, and are here adopted. To paraphrase a sentence from that dissent, '(Crittenden) could have discharged (his) burden without producing and introducing the original note, under Rule 166--A(e), by attaching a sworn or certified copy of the note to a Proper affidavit or by serving such copy with an affidavit. Gardner v. Martin, (162 Tex. 156, 345 S.W.2d 274 (1961)).' Other cases in point are Boswell v. Handley, 397 S.W.2d 213 (Tex.Sup.1966); and Mitchell v. Geosonic Corporation, 431 S.W.2d 958 (Tex.Civ.App.1968, no writ).

An acknowledgment (that an instrument was executed for the purposes therein expressed) does not purport to be a certification that the person acknowledging it swears to the truth of the matter set out. It does not, at least within the spirit of Rule 166--A, constitute an 'affidavit' so as to constitute a 'sworn or certified' copy.

Our present statute, Article 23(18), Vernon's Annotated Civil Statutes, defines an affidavit as '* * * a statement in writing of a fact or facts signed by the party making it, and Sworn to before some officer authorized to Administer oaths, and officially certified to by such officer under his seal of office.' (Emphasis ours.) Although this Court as early as 1857 in Shelton v. Berry, 19 Tex. 154, set out th definitions of Blackstone and Bouvier that an affidavit included the elements of 'a voluntary oath' and 'sworn...