Swilley v. Hughes, B--3118

• Decision Date: 04 October 1972
• Docket Number: No. B--3118,B--3118
• Parties: Dewey SWILLEY et al., Petitioners, v. Paul N. HUGHES et al., Respondents.
• Court: Texas Supreme Court

Page 64

488 S.W.2d 64

Dewey SWILLEY et al., Petitioners, v. Paul N. HUGHES et al., Respondents.

No. B--3118.

Supreme Court of Texas.

Oct. 4, 1972.

Korioth & Collins, John E. Collins, Austin, O'Fiel & O'Fiel, Hugh E. O'Fiel, Beaumont, for petitioners.

Owens & Fortney, Walter S. Fortney, Fort Worth, Seale & Stover, Sidney S. Stover, Jasper, H. A. Coe, Jr., Kountze, for respondents.

CALVERT, Chief Justice.

This is a suit on a promissory note and to foreclose a securing deed of trust lien. Alice Hughes, widow of James W. Hughes, suing individually and in her capacities as administratrix of her deceased husband's estate and guardian of the estate of his minor daughter, seeks by this suit to recover the amount due on a $45,000 promissory note made by Paul N. Hughes, nephew of James W. Hughes, and to foreclose a deed of trust lien given as security. Other defendants are T. E. Inman and O. D. Reeves and wife, subsequent grantees of certain parcels of land covered by the deed of trust lien; Marcus Dougharty, trustee in a deed of trust in favor of First Security National Bank of Beaumont, Texas to secure a note made by Reeves to the Bank; and the Bank. Dewey, Ronald and Ricky Swilley, judgment creditors of James W. Hughes, filed a petition in intervention praying that the administratrix recover against all defendants and that intervenors recover from the administratrix.

All defendants moved for summary judgment, offering the deposition of Paul Hughes as summary judgment proof to establish their affirmative defenses of want and failure of consideration for the note. The trial judge granted the motions and entered judgment that plaintiff and intervenors take nothing of defendants. Intervenors perfected their appeal; plaintiff did not and now cannot appeal.

The court of civil appeals affirmed the summary judgment, Hughes v. Hughes, 473 S.W.2d 304, and intervenors petitioned for writ of error. The court of civil appeals refused, however, to dismiss the appeal or to hold against the intervenors on certain grounds generally attacking the intervention itself (473 S.W.2d 304 at 306--307); wherefore, respondent Bank brings cross points.

BANK'S CROSS POINTS

Respondent Bank by its cross points questions the right of the Swilley- intervenors to prosecute this appeal and to maintain their suit. It argues that the trial court had no jurisdiction to entertain the Swilleys' suit against Alice Hughes in the absence of allegations in their petition that their claim against the James W. Hughes estate had been presented to and rejected by Mrs. Hughes as administratrix as required by Sections 298 and 314 of the Texas Probate Code, V.A.T.S. It then argues that the court had no jurisdiction to entertain the suit against the other defendants to collect on the note and foreclose the lien, rights conferred upon the administratrix by Art. 1981, Vernon's Ann.Civ.Stat., and Section 233, Texas Probate Code, in the absence of allegations of special circumstances such as existed in Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801 (1956). Finally, it argues that since jurisdiction of the trial court was never invoked by proper pleadings, intervenors have no standing to prosecute an appeal and their attempted appeal is moot. It asks that the judgments below be affirmed or that the appeal and the case be dismissed.

It will be noted that Bank's cross points are bottomed on the proposition that the trial court did not acquire jurisdiction of intervenors' suit because the petition did not contain certain factual allegations. In support of its position Bank cites such cases as Jaye v. Wheat, 130 S.W.2d 1081 (Tex.Civ.App.--Eastland 1939, no writ); Dempsey v. Gibson, 105 S.W.2d 423 (Tex.Civ.App.--Waco 1937, writ dism'd); Cain v. Church, 131 S.W.2d 400 (Tex.Civ.App.--Dallas 1939, no writ); Gannaway v. Barrera, 74 S.W.2d 717 (Tex.Civ.App.--San Antonio 1934), rev'd on other grounds, 130 Tex. 142, 105 S.W.2d 876 (1937); John Hancock Mut. Life Ins. Co. v. Warren, 72 S.W.2d 347 (Tex.Civ.App.--Eastland 1934, no writ); Lee v. Turner, 71 Tex. 264, 9 S.W. 149 (1888). The cited cases do hold, or clearly imply, that proper allegations in a petition in the two situations are necessary to invoke the court's jurisdiction. It will be noted, however, that all of the cases were decided before the effective date of the Texas Rules of Civil Procedure in 1941. We do not read Butler v. Summers, 151 Tex. 618, 253 S.W.2d 418 (1952), as making a similar holding.

We do not consider the cited cases as any longer authoritative on the pleading question. Rule 91, Texas Rules of Civil Procedure, provides for the use of special exceptions to point out 'defect(s), omission(s), . . . or other insufficiency' in pleadings, and Rule 90, Texas Rules of Civil Procedure, provides:

'. . . Every defect, omission or fault in a pleading Either of form or of substance, ¹ which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court . . . shall be deemed to have been waived by the party seeking reversal on such account . . ..'

We have held that the provisions of the Rule also operate to forestall a prevailing party from supporting a judgment of dismissal for lack of jurisdiction by pointing to defects and omissions in a petition. Jud v. City of San Antonio, 143 Tex. 303, 184 S.W.2d 821 (1945). And see Texas Osage Co-op. Royalty Pool v. Kemper, 170 S.W.2d 849 (Tex.Civ.App.--Galveston 1943, writ ref'd); Metalab Equipment Co. v. Spring Branch Ind. Sch. Dist., 378 S.W.2d 347 (Tex.Civ.App.--Houston 1964, writ ref'd n.r.e.), reversed with per curiam opinion 381 S.W.2d 48 (Tex.1964); Weisenberger v. Lone Star Gas Co., 257 S.W.2d 331 (Tex.Civ.App.--Fort Worth 1953, writ dism'd).

A holding that the allegations in intervenors' petition were inadequate to invoke jurisdiction of the trial court and of the appellate courts would require a reversal of the trial court's judgment as to them and dismissal of the petition in intervention. Bank seeks also, however, to have the take-nothing summary judgment affirmed on that ground. This we cannot do. To do so would in effect be saying that a defendant's motion for summary judgment is per se a general demurrer to the petition. Certain court of civil appeals' opinions have indicated that a motion for summary judgment On the pleadings 'partakes of the office of a general demurrer.' See Baxter v. Beaupre, 295 S.W.2d 718 (Tex.Civ.App.--Galveston 1956, no writ); Barnard v. Kuldell, 349 S.W.2d 313 (Tex.Civ.App.--Houston 1961, no writ). Situations in which such a motion can be sustained, however, are very limited, and the case before us does not present such a situation. It is not a case in which the facts alleged by a plaintiff establish the absence of a right of action or an insuperable barrier to a right of recovery. See McDonald, Summary Judgments, 30 Texas L.Rev. 285, 297.

THE SWILLEYS' APPEAL

Under Rule 166--A, Texas Rules of Civil Procedure, the party moving for summary judgment has the burden of establishing that there exists no material fact issue and that movant is entitled to judgment as a matter of law. When a defendant moves for summary judgment on the basis of his affirmative defense, he must, therefore, conclusively prove all essential elements of that defense. Cf. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). Respondents thus had to show, as a matter of law, that there was no consideration for the note sued on or that the agreed consideration had failed.

The only summary judgment proof offered was the deposition of Paul Hughes, a party and an interested witness. In order for the testimony of an interested witness to establish a fact, as a matter of law, it must be 'clear, direct and positive' with 'no circumstances in evidence tending to discredit or impeach such testimony.' Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965); Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). Paul Hughes testified that the note and deed of trust were made to James Hughes 'in order for Mr. James Hughes to endorse' a $45,000 note of Paul Hughes to the Small Business Administration; that, instead, the S.B.A. made a loan to him of $28,000 in January, 1965 without requiring endorsement by James Hughes; and that James Hughes never in fact endorsed the loan. But the deed of trust securing the note, made a part of the deposition as plaintiff's exhibit #2, was not filed for record until June 22, 1965, some six months after execution of the $28,000 note, and Paul Hughes admits that he is the one who had it recorded. Moreover, the $45,000 note was left outstanding and the securing lien was unreleased when this suit was filed in June, 1969. Those facts are inconsistent with the testimony of Paul Hughes...