Toliver v. Bergmann
| Decision Date | 12 December 1956 |
| Docket Number | No. 13056,13056 |
| Court | Texas Court of Appeals |
| Parties | W. H. TOLIVER et ux., Appellants, v. Herman BERGMANN, Independent Executor of the Estate of Frank Bergmann, Deceased, Appellee. |
Henry Lee Taylor, San Antonio, for appellants.
Lee Minner, San Antonio, for appellee.
This is an appeal from a summary judgment rendered against appellants upon a promissory note. The judgment recites that the motion came on to be heard on January 11, 1956, and judgment was 'signed, rendered and entered' on January 13th, two days after the hearing began. The order also recites that the 'Court proceeded to examine the pleadings and affidavit supporting plaintiff's (appellee's) motion, and having read and examined the defendants' answer herein * * * and having observed that the defendants * * * had filed (no) pleading or opposing affidavit in opposition to plaintiff's motion for summary judgment * * * and finding that said pleadings show an absence of any genuine issue of any material fact * * * summary judgment should be rendered for plaintiff who is entitled thereto as a matter of law.'
From these recitals it would appear that judgment was rendered on the pleadings. When a suit is based upon an instrument in writing such as a promissory note, Rule 93 of the Texas Rules of Civil Procedure requires that a denial of the execution thereof shall be verified by affidavit and that 'in the absence of such a sworn plea, the instrument (sued upon) shall be received in evidence as fully proved.'
(1) On November 5, 1955, appellants filed an answer in which they denied that they had executed the note sued upon by appellee. This was sworn to as being 'true and correct to the best of their knowledge and belief.' The answer was seemingly insufficient as a non est factum plea under Rule 93. Century Ins. Co., Limited of Edinburgh, Scotland v. Hogan, Tex.Civ.App., 135 S.W.2d 224; Howell v. Knox, Tex.Civ.App., 211 S.W.2d 324. McDonald points out that under the federal summary judgment rule (No. 56) an With reference to the Texas practice, however, he points out that 'this language (last quoted) should be avoided since * * * the Texas courts have not approved a distinction between these forms when applied to verified pleadings.' McDonald, Texas Civil Practice, § 17.26; see also, McDonald, § 5.15.
(2) Had the sworn statement contained in the original answer been the only affidavit on file, the trial court's ruling could be sustained. However, it appears from the transcript that on January 11, 1956, the appellants, with recited leave of the court, filed an answer containing an unequivocal and positive affidavit in which they categorically denied that they had executed the note attached to plaintiff's petition and upon which the suit was predicated. This pleading was undoubtedly sufficient as a non est factum plea and raised an issue of fact as to appellants' execution of the note. The affidavit was likewise sufficient to meet the requirements of Rule 166-A. Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235; Tucker v. Neal Oil Corp., Tex.Civ.App., 255 S.W.2d 302. The trial judge ...
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...be determined by summary judgment only when no material fact issues are involved and questions of law alone are presented. Toliver v. Bergmann, 297 S.W.2d 208, 210 (Tex. Civ. App. San Antonio 1956, no writ) (citations In a more recent decision, that court has again concluded that the rule d......
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