440 S.W.2d 387 | Tex. App. | 1969
OPINION
This is an appeal by the plaintiff in an automobile guest statute case from a summary judgment rendered for the defendant. Involved are questions of res judicata, statute of limitations, and whether there was a fact question raised. We affirm the judgment of the trial court on the basis of appellee’s first counterpoint to the effect that we cannot decide the question as to whether or not fact issues are presented in the absence in this court of the depositions which were before the trial court.
One of the grounds of the motion for summary judgment was that there was no issue of fact and that there was no evidence to show gross negligence, this being a guest statute case. Before the court and for its use in deciding this question were the depositions of the plaintiff, Rinker, and the defendant, Ward, along with stipu
“ ‘In the absence of a complete statement of facts there is no way for us to -examine the whole record to determine whether there is any evidence to support the court’s findings and conclusions. With only a partial statement of facts before us we must presume that there was evidence to support the court’s findings.’ ”
In the case before us, then, we must presume that the trial court correctly found from the depositions that there was no genuine issue of fact. We are in no position to say that the court erred when we do not have before us the same evidence that the court had before it in reaching its decision. This point is very clearly set forth, so far as summary judgment cases are concerned, in the case of Alexander v. Bank of American National Trust and Savings Association, Tex.Civ.App., 401 S.W.2d 688 (wr. ref.). In that case the appeal was from summary judgment in which the court considered, among other matters, the deposition of the defendant. The deposition was not brought forward and the contention was made on appeal that a fact issue precluded summary judgment under Rule 166-A, Texas Rules of Civil Procedure. In its opinion the court said:
“It is impossible for us to decide from that incomplete record that the judgment was erroneous. Torrey v. Cameron, 74 Tex. 187, 11 S.W. 1088. It is presumed the omitted deposition established its propriety. Armstrong v. West Texas Rig Company, Tex.Civ.App., 339 S.W.2d 69, 73, writ ref. n. r. e.; Locke v. J. H. Marks Trucking Co., Tex.Civ. App., 318 S.W.2d 1; Stovall v. Scofield, Tex.Civ.App., 325 S.W.2d 221, McFarland v. Connally, Tex.Civ.App., 252 S.W. 2d 486, 488.”
In the case before us, appellant says that he has brought forth sufficient evidence to show that a fact question exists in that he quotes in his brief from the depositions which were before the trial court, and also in that he filed a trial brief in which quotations were taken from the depositions and that such trial brief was filed of record in the trial court. The trial brief would be, at best, in the nature of a pleading, and would not be the summary judgment evidence spoken of in Rule 166-A. The excerpts from the depositions do not suffice for us to reverse the trial court, because we know not what was contained in the remainder of the depositions. For all we know, there could have been judicial admissions wiping out the statements attributed to the parties in the excerpts set forth.
Appellant seeks to invoke Rule 404, Texas Rules of Civil Procedure, which provides that informalities in the record which are not objected to within thirty days are waived. We do not think Rule 404 is involved here because the appellee does not seek to strike or have disregarded the matters before the court. His contention is, simply, that what is here is insufficient.
Being of the opinion that under the state of the record we must presume that the
