Youngstown Sheet & Tube Co. v. Penn

• Decision Date: 21 November 1962
• Docket Number: No. A-8984,A-8984
• Citation: 363 S.W.2d 230
• Court: Texas Supreme Court
• Parties: The YOUNGSTOWN SHEET & TUBE CO., Petitioner, v. Henry W. PENN et al., Respondents.

Page 230

363 S.W.2d 230

The YOUNGSTOWN SHEET & TUBE CO., Petitioner, v. Henry W. PENN et al., Respondents.

No. A-8984.

Supreme Court of Texas.

Nov. 21, 1962.

Rehearing Denied Jan. 16, 1963.

L. L. James, Tyler, for petitioner.

Morrison, Dittmar, Dahlgren & Kaine, San Antonio, for respondents.

WALKER, Justice.

This is a summary judgment proceeding. The Youngstown Sheet and Tube Company, petitioner, brought suit against Texita Oil Company on a sworn account and for foreclosure of materialmen's liens on the Mallard 'A' and Mallard 'B' leases in Atascosa County. Petitioner's claim is for labor and materials which it furnished to Texita. The second amended original petition alleged that Texita was a partnership composed of Gordon W. Johnson, I. A. McNab, Morris Cannan, Henry W. Penn, J. K. Stark, and J. P. Hale. It was also alleged that the defendants were partners in the development and operation of the two leases. Johnson and McNab answered that they were partners engaged in business under the name of Texita Oil Company and had been discharged in bankruptcy. Penn, Stark and Hale, respondents, filed a verified answer denying that they were partners in Texita, and further denying that they had engaged in a partnership with Texita in the development and operation of the leases. Respondents' motion for summary judgment was granted by the trial court, and the Court of Civil Appeals affirmed. Tex.Civ.App., 355 S.W.2d 239.

The judgment entered by the trial court expressly disposes of all parties named in the petition except Cannan. So far as can be determined from the record, Cannan was never served with citation and did not answer, and there is nothing to indicate that petitioner ever expected to obtain service upon him. In these circumstances the case stands as if there had been a discontinuance as to Cannan, and the judgment is to be regarded as final for the purposes of appeal. See Moody v. Smoot, 78 Tex. 119, 14 S.W. 285; Mabry v. Lee, Tex.Civ.App., 319 S.W.2d 125 (wr. ref.); Varrs v. Faulkner, Tex.Civ.App., 138 S.W. 789 (no writ).

Respondents filed a number of affidavits in support of their motion for summary judgment. One of these was made by Gordon W. Johnson, who stated that he and I. A. McNab were engaged in business as partners under the name of Texita Oil Company and that respondents were never partners in such business. Petitioner recognizes that Texita was a partnership composed of Johnson and McNab, but it contends that respondents were partners with Texita in the operation of the leases.

Attached to respondents' original answer is a photostatic copy of an operating agreement dated March 1, 1957, purportedly executed by respondents and Texita. The Johnson affidavit states that in connection with the Mallard 'B' lease described in the original petition, 'Texita Oil Company and the defendants, Henry W. Penn, J. K. Stark and J. P. Hale, executed a written operating agreement dated March 1, 1957, effective as of such date, a copy of which is attached to the original answer filed by such defendants in the above named proceeding and which is made a part hereof by reference as if fully rewritten herein.' If this operating agreement and the facts disclosed by the several affidavits were properly considered by the trial court, we agree with the Court of Civil Appeals that the record shows that there is no genuine issue as to any material fact and that respondents are entitled to judgment as a matter of law in so far as the claim for labor and materials furnished in connection with the operation of the Mallard 'B' lease is concerned.

Petitioner insists that the affidavits are fatally defective because they do not comply with Rule 166-A, Texas Rules of Civil Procedure, in the followiong respects: (1) the affidavits do not state that they are made on the personal knowledge of the affiants; (2) the affidavits do not show affirmatively that the affiants are competent to testify to the matters stated therein; (3) sworn or certified copies of the papers referred to in the affidavits were not attached thereto or served therewith; and (4) each affidavit is based, in part, upon conclusions and hearsay. None of these objections was made in the trial court.

Paragraph (e) of Rule 166-A provides that 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therwith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.' Although there is no express requirement that the affidavits state that they are made on the personal knowledge of the affiant, we think this in the intendment of the rule. Hearsay may not be made the basis of a summary judgment, and the trial judge should not be required to speculate as to whether the affiant could establish the facts stated in his affidavit if he were testifying from the witness stand.

We also agree with petitioner that Rule 58, Texas Rules of Civil Procedure, which authorizes statements in a pleading to be adopted by reference in a different part of the same pleading, in another pleading or in any motion, does not apply to an affidavit filed in support of or opposition to a motion for summary judgment. The affidavit is not a pleading or motion but constitutes 'proof' upon which the motion will be either granted or denied.

It thus appears that the affidavits in this case were subject to exception in the trial court because they do not show affirmatively that they are made on personal knowledge and that the affiants are competent to testify to the matters stated therein, and also because verified or certified copies of the operating agreements were not attached to or served with the Johnson affidavit....