Opinion
No. 4526.
January 28, 1972. Rehearing Denied February 25, 1972.
Appeal from the 42nd District Court, Taylor County, Raleigh Brown, J.
Sayles Garrett, Jack Sayles, Abilene, for appellants.
Schulz, Hanna Burke, Bob Hanna, Jackson Jackson, Randall C. Jackson, Abilene, for appellee.
Bank of Commerce recovered a partial summary judgment against Johnnye Pat Estes on a note for $30,435.90. The court thereafter heard evidence on the question of attorney's fees and entered a final judgment on September 2, 1971 from which judgment Johnnye Pat Estes has appealed.
The Bank went to its trial on its third amended original petition and made a motion for summary judgment on its first alternate pleading contained in paragraph ten. The Bank alleged that Fred M. Newman acting as Independent Executor of the Estate of Ethel Reagan Estes and as attorney in fact for Johnnye Pat Estes executed and delivered to it a note on or about August 7, 1967 in the amount of $32,951.68. It alleged that Newman and Estes were notified to produce the original note during the trial of the case. A copy of said note was attached to the Bank's petition and marked Exhibit G and was certified by the Bank President as being a true and correct copy of the original note.
However, neither the original note nor a sworn or certified copy thereof showing that the Bank was the owner or holder appears in the summary judgment proof as required by Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.Ct. 1971).
The judgment is reversed and the cause is remanded.
ON MOTION FOR REHEARING
Perkins v. Crittenden, 462 S.W.2d 565 (Tex.Sup.Ct. 1970) constitutes additional authority in support of our holding. In the light of the pleadings and the summary judgment proof in this case and the issues made thereby, we doubt that this case can be disposed of by summary judgment.
The motion for rehearing is overruled.