Opinion
No. 4439.
March 17, 1966. Rehearing Denied April 7, 1966.
Appeal from the 113th District Court, Harris County, John Snell, Jr., J.
J. L. Rothchild, Herman W. Mead, Houston, for appellant.
Liddell, Austin, Dawson Sapp, W. Robert Brown, Houston, for appellee.
Defendant appeals from a summary judgment in plaintiff's action, as assignee, on a promissory note. Defendant, maker of the note, pleaded failure of consideration and that plaintiff was not a holder in due course. He now says the pleadings raise a fact issue precluding summary judgment under Rule 166 — A, Texas Rules of Civil Procedure.
The judgment recites the court considered, among other matters, the deposition of defendant. The deposition, one portion of the record to be considered in determining whether summary judgment is proper under the Rule, is not in the record. 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.
Affirmed.