Appellant seeks to review by petition for writ of error the summary judgment granted against him in appellee’s suit to recover on a building contract. Although appellee did not file a reply brief herein, it has filed a motion to dismiss the petition for writ of error for lack of jurisdiction of this court.
It is asserted by appellee that the summary judgment is final, and therefore, we have no jurisdiction to review same. It is true that on February 4, 1970, final judgment was signed in this cause based on ap-pellee’s motion for summary judgment. However, on July 30, 1970, appellant filed his petition for writ of error together with proper appeal bond. Article 2249, 1 authorizes an appeal or writ of error to the Court of Civil Appeals from a final judgment of the district court in civil cases. Article 2249a limits the right to review by *184 writ of error by providing in part that, “No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.”
Here appellant filed a general denial in response to appellee’s original petition. The stipulation of the parties reflects that neither appellant nor his attorney made any appearance before the court, nor participated during the trial or hearing of the motion for summary judgment. It is settled law that the mere filing of an answer does not constitute
participation
in the actual trial of the case so as to bar review by writ of error. Phillips Petroleum Company v. Bivins,
Appellant, not having participated either in person or by his attorney, in the actual trial of this case is entitled to review the final judgment entered herein by his petition for writ of error which was filed herein within six months from date of rendition of the final judgment. Article 2255; Gunn v. Cavanaugh,
Appellee brought this suit to recover on a contract for the application of Brick-stone to a structure built by appellant. Although specific reference was made to a written contract entered into by said parties, the contract was not attached to the petition. The petition, although not in the form of a suit on a sworn account as authorized by Rule 185, Texas Rules of Civil Procedure, was verified by the affidavit of appellee’s president that the allegations of said petition were true and correct. An unsworn general denial was filed by appellant.
Appellee filed its motion for summary judgment wherein it adopted by reference the sworn pleading filed by it and pointed out that appellant’s answer was unverified. No additional facts were asserted by said motion for summary judgment, nor was the contract allegedly entered into by said parties attached thereto. The motion for summary judgment was verified by appellant’s attorney.
It must be recognized at the outset that since this suit was not filed in the form provided by Rule 185, appellant was not required to file a sworn answer. Rose v. Shearrer,
This question was recently considered by the Supreme Court in Hidalgo v. Surety Savings & Loan Association,
Here there was no summary judgment proof of the contract allegedly entered into by the parties and which contract formed the basis of appellee’s cause of action. Nor was there proof of the performance by appellee or breach by appellant. It cannot be said that this lack of evidence amounted to a purely formal deficiency which was waived by appellant’s failure to appear and object in the trial court. Cf. Youngstown Sheet & Tube Company v. Penn,
The judgment of the trial court is reversed and remanded.
Notes
. All statutory references are to Vernon’s Annotated Civil Statutes.