Womack v. I. & H. Development Co.

• Decision Date: 07 October 1968
• Docket Number: No. 7869,7869
• Citation: 433 S.W.2d 937
• Parties: James WOMACK et al., Appellants, v. I. & H. DEVELOPMENT COMPANY, Inc., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 937

433 S.W.2d 937

James WOMACK et al., Appellants, v. I. & H. DEVELOPMENT COMPANY, Inc., Appellees.

No. 7869.

Court of Civil Appeals of Texas Amarillo.

Oct. 7, 1968.

Rehearing Denied Nov. 11, 1968.

Wayne Bagley, Amarillo, for appellants.

Underwood, Wilson, Sutton, Heare & Berry and Edward H. Hill, Amarillo, for appellee.

DENTON, Chief Justice.

This is a summary judgment case. I & H. Development Company brought suit against James Womack and Wayne Whitson on four promissory notes. The defendants answered by general denial and a verified plea of partial payment. The trial court granted plaintiff's motion for summary judgment and the defendants have perfected this appeal.

Appellee filed its unsworn petition alleging the execution and delivery of four promissory notes, each in the principal sum of $1300.00, dated September 8, September 25, October 7 and December 7, 1964, respectively. Each note was due ninety (90) days after date. An unsworn reproduced copy of each note was attached to the petition . Appellee alleged it was the present owner and holder of each note; that the sum of $1831.27 had been paid on the note; and alleged that demand for the balance had been made and that appellants had failed to pay. Attorneys' fees as provided for by the notes were also alleged. Appellants answered by sworn pleadings, acknowledging the notes described in appellee's petition were executed by the appellants 'for the consideration and on the dates alleged', but alleged certain payments had been made on said notes and sought credits in the amount of $4631.17.

Appellee subsequently filed its unsworn motion for summary judgment. The motion recited the nature of its cause of action and referred to the attachment of copies of the notes to its amended petition. The motion was supported by an affidavit by Joye S. Hipes, President of the appellee corporation. The affiant stated he was personally familiar with the facts and circumstances surrounding the execution and delivery of the four notes attached to the petition and the facts concerning the application of credits on the notes and that the credits alleged in its amended petition constituted all credits which the appellants were entitled. The affiant specifically denied certain credits alleged in appellants' sworn answer. Appellants filed no reply in opposition to appellee's motion for summary judgment or the attached Hipes affidavit.

Appellants urge the trial court erred in granting the motion for summary judgment for four reasons: appellee did not introduce the notes in evidence; there was no proof appellee was the owner and holder of the notes sued upon; the pleadings and evidence do not show the notes are due; there were circumstances and evidence tending to discredit the affidavit of Hipes, an interested witness.

The contention is made no proof of the notes was made because neither the originals or certified copies were attached to the pleadings or the motion for summary judgment. In support of this contention, appellants rely on Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274. However, in Gardner no copy of the material instrument was in the record. Thus, there was nothing in the record that would enable the appellate court to determine whether the motion was properly granted. In the instant case, reproduced copies of the notes were attached to the amended petition. The amended petition, motion for summary judgment, and Hipes' affidavit referred to and incorporated the copies of the notes by reference. The contents of the notes are in the record. There was no exception in the trial court relating to the failure to attach the original or certified copies of the notes in question. Where unverified or uncertified copies are attached to pleadings or a motion for summary judgment and no exception is taken, the party thereby waives the requirement under Rule 166A(e) and the copies are a sufficient basis to grant a motion for summary judgment when it fairly appears there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Youngstown Sheet & Tube Company v. Penn. 363 S.W.2d 230 (Sup.Ct.). Farmers & Merchants Compress & Warehouse Company v. City of Dallas (Tex.Civ.App.) 335 S.W.2d 854, 856 (Ref. N.R.E.). Schoolcraft v. Channel Construction Company (Tex.Civ.App.) 397 S.W.2d 256 (Ref. N.R.E.). It is further noted appellants admitted the execution of the notes in their sworn answer. Such allegation constitutes a judicial admission and is construed against appellants. Yelverton v. Brown (Tex.Civ.App.) 412 S.W.2d 325. McCormick v. Stowe Lumber Company (Tex.Civ.App.) 356 S.W.2d 450 (Ref. N.R.E.). We therefore conclude the notes were properly in evidence before the court.

Appellee's first amended petition alleged it 'is the present owner and holder of each of the aforesaid notes'. The affidavit of Hipes made reference to the four described notes and reaffirmed that certain enumerated credits had been applied to the notes. Appellants' answer admitted execution of the notes and alleged they had made certain payments to appellee and had received credits for the same. Appellants did not deny liability to appellee, but prayed they be allowed credit on the principal of the...