*1 point, one ordered the Court. On agreement am CASUALTY FIRE &
SOUTHWESTERN Petitioner, COMPANY, LARUE, Respondent.
Guy
No. A-9114.
Supreme Court of Texas.
April 17, 1963. May
Rehearing Denied Whitham, Dallas, petitioner.
Warren Dallas, Andress, Jr., William spondent.
1 fiR affirmatively pleaded. limitations must GREENHILL, Justice. payment Rule Rule and Under 94 promissory Larue executed Guy on which defense thus an affirmative duly endorsed $4,871.93 which was for proof, which defendant has the burden Company. The Insurance petitioner and specially pleaded, must be for the note suit on company brought South denial. shown under fees, the balance alleging that attorneys’ Allen, 160 Company v. western Investment Copies $2,747.97. note was owed (1959); Com 866 328 S.W.2d at- were side reverse and its Smart, 123 Tex. Trust mercial Inv. back company’s petition. tached to the (1934). 35 69 S.W.2d 67 to the the endorsement of the note showed it showed company, but order of the the execution of Since credits. issue, and not in and its endorsement were upon Larue to estab since the burden was points: had two answer unsworn Larue’s payments lish company’s exception that the special (1) a special overruling Larue’s not err how petition failed to show required the which would have applied or had been payments credits for company had been show what payment] was made when demand [for made and when. note; (2) thereupon for sum- moved company allegations Nor do the of the com made to was mary No answer judgment. pany’s petition ambiguity or an create an appeared Both sides that motion. alleged issue of fact. face amount court, against entered trial which of the due note and the amount which was attorneys’ $2,747.97 plus fees. Larue for company on the note. The could recover re- Appeals at Dallas The Court of Civil for, no more than the amount sued remanded versed the prove pay the burden was Larue to trial. the trial court for a new cause to ment or release of further sums. failure of the Its is based on the excep- special the case
trial court to sustain Larue’s one feature of us, Civil raised tion and because Court of but it is not disturbs Appeals’ that there an issue of in this Court point of error petition itself company’s fact: As the record reaches Appeals. of Civil ambiguity in the amount which note was not attached us, created an original Tex.Civ.App., presented by Larue. an affidavit was owed or to to the support S.W.2d 821. deposition. point But
judgment, or in the Court of deny failure Larue does not the execution made of this Indeed, in Larue’s brief This concedes in of the note. he his brief. Civil Appeals, it is question stated its endorsement He does the Court upon it, a fact that “The note company who sued or that one as exhibit, rather upon adequate informal consideration. as an based attached * * *” nature, $4,871.93. This state defenses must Indeed all these upon by relied apparently was pleadings under Rule 93 ment raised Appeals. The second line of Rules of No of the Texas Civil Procedure. .Court that “The note opinion states itself argument is made Larue on the point or its petition payment. of demand for attached purposes.” thereof part amade parties 822. The themselves Similarly, provides that oth by the failure of not disturbed including affirmative defenses were er attach the company to fraud, release, payment, and the statute of get or to it before the the usual formal court recitations and a recitation deposition. affidavit or no error Since exception should be thereon, overruled, assigned we could the judgment continues: “and Assuming it to have having verse this failure. court heard considered the *3 error, pleadings of such character was not on file and the statements of counsel, as to constitute fundamental error. is of the opinion and so finds that they show an genuine absence of Ap- The any material plaintiff fact and that peals of the trial court is reversed and that entitled to summary judgment as a matter is affirmed. law the principal $2,747.97 sum of
plus attorney’s fees in the amount of $274.- CALVERT, GRIFFIN, J., C. 80.” Judgment then entered accord- HAMILTON, JJ., WALKER and dissent- ingly. ing. perhaps It is well at this to consider the office of a motion for CALVERT, (dissenting). Chief ment on pleadings. In an article in 22 Justice Texas Law 433, 439-440, Review Suggs and
I dissent. Stumberg liken such a to motion the old holding McDonald, disagree with the writing demurrer. special excep- length some to overrule not error Texas Law Review However, my with that disagreement undertakes a statement tion. of sound rules necessarily me lead to would not practice. As one rule My prompted what he states: dissent is dissent. me a far fundamental error to more seems a solely “a. Where motion is directed That the Court. being committed supported to and is misconception of apparent in an lies admissions, affidavits, depositions, office a limited extrinsic the motion is other pleadings. closely analogous to a op- challenging sufficiency not so state
Although the Court does
ponent’s
law.
pleadings as a
discloses that South-
opinion,
record
counter
then neces-
summary judgment
No
affidavits are
sought
western
tested on
sary.
pleadings
The
will be
motion is brief
un-
pleadings.
contents,
if
are suffi-
cannot itself be treated
their
and therefore
sworn
law,
affidavits, admissions,
the motion
be over-
cient
will
No
affidavit.
as an
(Emphasis
author’s)
ruled.”
depositions,
proofs
summary judgment
were at-
other
requirement
is no
motion
motion.
or filed with the
tached
summary judgment
motion,
be a sworn
to a
asserted
Jones,
Willoughby v.
251 S.W.
grounds that Defendant
“on
expressly provides
and Rule 166-A
2d
defenses, and
any
submit
affirmative
may be made “with or
one
without
set
Defendant’s
defense
forth
Moreover,
supporting
affidavits.”
motion
Answer
denial]
[a
insufficient
not indicate on its face whether it
need
law,
is,
there
there-
a matter of
pleadings
at the
alone or
directed
whether
fore,
any
as to
genuine issue
material
pierce
pleadings
intended
it is
fact,
is entitled to Judg-
evidence, although
certainly
better
(Emphasis
matter of law.”
as a
add-
to make this
disclosure
the mo
practice
motion
ed).
answer to the
was filed.
No
If the motion is
solely
itself.
directed
tion
insufficiency
pleadings
trial court’s
reflects that
at the
issue,
is,
course,
pleadings.
entered on the
Following
raise
affidavits,
ad
the Court’s statement
dis-
place in
proceeding
missions,
failure to
turbed
depositions or other
get
duce the
it before
only question
before
judgment proofs. The
deposition.
proceeding on
trial court
affidavit or
type
court in
Why
so?
the facts
motion
defendant’s motion is whether
good, production
plaintiff,
of evidence of
alleged by
proved,
if
example
unnecessary.
character
support
An
in law.
defendant’s motion on the
Getting
problem
to the merits of the
properly may
granted is
in Schroe
found
us,
the first
be faced
Co.,
Ry.
& Pacific
der v. Texas
Tex.Civ.
is whether Southwestern’s
for sum-
motion
*4
261,
history.
App., 243
It
S.W.2d
writ
mary judgment on
prop-
summary
doubtful that a
erly granted. The Court seems to hold
on
ever be entered
in favor
that
was.
plaintiff
of a
when
has been
an answer
opinion
refers to the
jurisdictions,
filed. Unlike some other
fact
that Larue’s answer
contained
perhaps unfortunately, our
of Proce
Rules
note,
pleas
denying execution of the
plea
general
dure authorize
defensive
asserting
consideration,
ques-
failure of
or
denial;
express
terms
Rule
tioning
genuineness
of the endorse-
92,1
plea puts
pleaded
in issue all matters
assignment
ment and
to Southwestern.
party
the adverse
which are not re
refers also to the
plea
fact that neither a
quired to be denied under oath. Thus the
payment
nor any
plea required
other
plea
general
defensive
denial is sufficient
by Rule 94 to
affirmatively
be asserted
in law to raise issues of
respect
fact with
was filed. All
granted;
this is
every
essential
does not meet
the fact that
only
save
those matters
erroneously
entered if is-
required
oath,
to be denied under
puts
sues
were
gen-
raised
plaintiff
the burden on the
proving
eral
I suggest
that
general
such matters. Trevino v. American Nat.
denial raised issues of fact and that
Co.,
500,
656;
Ins.
140 Tex.
168 S.W.2d
was,
therefore, erroneously en-
Altgelt v. Emilienburg,
templating
gen-
the introduction
in all
other
of evidence.
As
puts
Perhaps
strongest
on a
indication of
denial
suit
note
a mis-
eral
pleaded
conception
plaintiff
of the office of the
all matters
motion lies
issue
All
Rules
Civil Procedure.
1.
references to
are to Texas Rules of
167, 168;
Com.App.,
Texas
required
to be denied un-
are
City
Shop,
Alexander, Tex.
der
A
Tire
Inc.
oath.
292.
v.
9 Tex.Jur.2d
puts
Civ.App.,
al-
undoubtedly
denial thus
owner
legations
ordinary
only
difference between an
note,
holder of the
merits,
trial on the
and a
at-
due,
provides for
and that
proceeding,
denial
with the
are
torney
matters
Proof
these
fees.
file,
type
lies
of evidence
recovery.
plaintiff’s right
essential
quired.
Act nor
Negotiable
Neither
Instruments
discharg-
ceeding Southwestern
require that
the Rules
Procedure
ed its burden without
and in-
oath
of them be denied under
troducing
under
them
Traverse of
disproved.
can be
166-A(e), by attaching
certi-
a sworn or
specially
to be
affirmative defense
copy
proper
fied
affidavit
pleaded
Thus
under Rule 94.
affi-
serving
with the
general denial Larue could
Martin,
davit. Gardner
endorsement
genuineness
Thompson 1 Tex. v. production provide a purpose intro of the Rule to absence of in the plead- obtaining judgment in favor method of duction of improper. legal right is ings when no would have of Southwestern 372; Marshall, by plaintiff and of sham pleaded piercing Webb v. v. 25 Tex. Davis 914, evidence, pur- Tex.Com.App., not the pleadings Reynolds, S.W. provide Duiker, Tex.Civ.App. to pose the Rule short-cut 917; Hayward v. requiring history; judgment, through no writ Able ato Moreover, pleadings assumption that Chandler, legally suf- 12 Tex. an v. issues, are in produce raise to and in to sham. ficient if Southwestern my opinion note, Larue, and in Squarely point, under his in cor- gen troduce decided, Franklin, v. is Stanford denial, prove rectly could Southwestern eral Tex.Civ.App., 312 no writ longer could its owner and thus Means, judg- case a recovery. history. v. Tex. defeat Jackson defendant, against favor default is pleadings rendered entered ment on the * * * liquidated and if the claim is checks was plaintiff in a suit proved by writing, de- instrument ground versed court, damages is- shall assessed raised fact nial filed defendant direction, judgment final only be resolved which could sues * * statement, By shall be McDonald’s rendered therefor And if evidence. duty above, quoted provisions of the Rule that a motion excep- special the claim to a determine “closely analogous op- sufficiency liquidated an instrument proved challenging the tion ponent's damages law” and to writing a matter of assess as correct, Kinnard them this decision in assessed under its direction. Court’s plaintiff’s Herlock, all other forecloses While elements sustaining alleged, claim are taken as question. as confessed We held that tak- damages amount is not general denial to a true, alleged. as confessed That being error. en on a note was reversible suit totally say illogical that the lays some Court by way general denial answer point of emphasis on that “no the fact petition relieves the as- was made” and “no error was author- burden of evidence and signed” izes a the failure of Southwestern to if defaulted ings. Thus Larue had note in evi- duce case, dence. These failures have some *6 ab- judgment rendered the it did render of the Court Civil bearing of production note sent in the evidence of judg- Appeals to reverse the trial court’s testimony showing payments and cred- and ment, in but none whatever supporting judgment. the the With determining the action of the trial whether it, testimony note and entering summary court in judgment correctly and de- properly the Court ques- me to brings erroneous. This the payable; termine the amount due and with- judgment tion of whether the of the Court evidence, out that it could not. One Appeals reversed, Civil should be ask, filing de- general how did the which, opinion, to the other in my nial, put the which in issue correctness general in issue the computation, the Southwestern’s authorize accept com- trial court The trial court for judgment rendered putation as ? $2,747.97 correct And how plus attorney’s sum of fees general denial authorize in the amount judg- $274.80. Since find, without that Court ment was entered on the provided attorney’s for that note fees and accepted must have Court the amount al- correct amount thereof was correct, leged $274.80? to be due as evi- without dence, true, accepted as evi- without Ap- Larue had before Court of Civil dence, provided that ten for peals point and an argument of error attorney’s percent fees. Larue’s went to the heart of this thereunder put both matters in hold denial issue. To point of error is matter. as follows: anomaly otherwise lead to an in $4,871.93 pleading for “A the law. note in such amount attached credits, exhibit, plead- showing Larue had defaulted and filed no will not sus- summary judgment over ing, properly Southwestern could not de- tain $2,747.97 plus attorney’s claimed judgment production obtained without nial fees, supporting ex- and introduction of the note in without affidavits to evidence. provides: plain discrepancy, being judgment by an ob- “Where actually dispute proofs vious of fact.” amount due. Without What effect, erroneous, says stripped judgment clearly of sur- my opinion on plusage, properly pre- denial with a error was presented file the rendered served and Court Civil $2,747.97 attorney’s Appeals. fees could The judgment $274.80 evi- granted pleading, reversing ef- required. remanding That is also dence cause argument under fect the statement and is correct. point.
the. I would affirm the point Larue In his statement under deny points exe- out that while he did HAMILTON, WALKER JJ., join note, “by
cution of the he did in this dissent. denial, deny owing amount owing argues He the amount note.” GRIFFIN, and does self-proving Justice. oath; not have to denied under join the dissent the ground it, raises denial “general reaches or a admissible in fact;” “the claimed rules, evidence accordance with $2,747.97 material balance of was not support- attached to an affidavit plaintiff’s recovery,” “It has not and that ing the motion summary judgment. manner.” Thus been established complaint was not the basis properly to Southwestern had
present the note as basis for sum-
mary judgment, but had been rendered
ings requiring proof when an rather than sued of the amount
issue of correctness *7 INSURANCE EMPLOYERS’ ASS’N for had been TEXAS S. T. GATSON. 93-94, Stayton Bar 13 Texas Journal No. 6580. simple delay to the refers been caused suit on a note had Court of Texas. demanding a denial and Beaumont. 166-A, adoption jury March 1963. “Now, however, case continues: promptly simple and a should be April Rehearing Denied only show need rendered. holder— that he oath that will be note —and
indeed So, here, it.” if South- is to sought judgment on
western had simple than on
proofs rather it was the owner holder
affidavit had note and certain allowed, properly with credits
been made attached, a sworn simple matter have made to render
the Court