555 S.W.2d 160 | Tex. App. | 1977
This a summary judgment case. Producers Grain Corporation secured a judgment
In his motion for summary judgment, Mooney asserts it is predicated upon the pleadings and exhibits attached. The exhibits are certified copies of the two judgments rendered on December 13, 1971, and December 11, 1974.
Mooney’s motion for summary judgment was granted and the Niells have appealed.
In the supplemental transcript, we find the motion for summary judgment which has attached to it proper certified copies of the two judgments described above. Rule 166-A, T.R.C.P., dealing with summary judgments provides in Section (c), “. No oral testimony shall be received at the hearing . . . ” The rule also limits the evidence to “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . ” “This evidence must be in writing, be admissible, and have probative force . .” Summary Judgment in Texas, 14 Hous.L. Rev. 854 (1977).
A statement of facts has been filed in this ease. It reflects the court correctly admonished the lawyers he was “not going to hear any evidence at a summary judgment hearing.”
We find no admissible summary judgment evidence that Mooney paid the judgment rendered against the Niells or that it has been released by Producers. The only summary judgment proof in the record are the certified copies of the two judgments.
We hold the appellee has not discharged his burden of establishing as a matter of law that there are no genuine issues of fact as to one or more of the essential elements of his cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).
The judgment is reversed and the cause is remanded.