allowing appellate review of a trial court’s action overruling a motion for summary judgment in cases where both parties move for a summary judgment and one is granted
How later courts described this case
- allowing appellate review of a trial court’s action overruling a motion for summary judgment in cases where both parties move for a summary judgment and one is granted
- counsel’s affidavits stating check copies were “true and correct” is not competent summary-judgment evidence absent a foundation for counsel’s personal knowledge
Written by the judges who cited it.
Later courts went against this
Limited by Ackermann v. Vordenbaum, 9 Tex. Sup. Ct. J. 428 (1966)
316 S.W.2d 396 (Tex.1958), limited by Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966).
The opinion
Mr. Justice Smith,
concurring.
The opinion reaches a correct result, but I respectfully decline to join in overruling the holding in Rogers v. Royalty Pooling Co., 157 Texas 304 , 302 S.W. 2d 938 . In that case we held that where both parties filed motions for summary judgment, and the trial court granted one motion and overruled the other, the Court of Civil Appeals could not review the order of the trial court overruling the motion for summary judgment. It is true that the Rogers decision was announced in a per curiam opinion. The application for writ of error was not granted, thereby depriving the parties of an opportunity to present oral argument on the question. Although this method of procedure has never met with my approval, yet it must be said that the holding that an order overruling a motion for summary judgment was interlocutory in nature, and, therefore, not appealable, was supported by the case of Wright v. Wright, 154 Texas 138 , 274 S.W. 2d 670 , decided by this court on January 5, 1955. I am unable to draw a distinction between the holding on the question in the Rogers and Wright cases. The majority in the present case makes no effort to do so. There is no distinction. This court must have so thought, otherwise it would not have cited the Wright case, supra, in support of its decision in the Rogers case.
The parties to the present suit were not concerned enough with this question to mention the overruling of the Rogers case in their motion for rehearing, this for the obvious reason that *66 the cause was reversed and remanded for trial. The overruling of the Rogers case was unnecessary to a decision in the present case. Since the decision in the Wright and Rogers cases, supra, litigants have accepted the law announced in such cases, and without doubt attorneys representing their clients in many cases have made no more effort to appeal from an order overruling a motion for summary judgment. Likewise, the opposite party will make no effort to point out issues of fact in the event error should be assigned to the action of the trial court in overruling a motion for summary judgment. As a matter of fact, we have such a case pending in this court. The case is styled and numbered: A-6759, Gulf, Colorado & Santa Fe Railway Company v. G. C. McBride, DBA G. C. McBride Company, and Central Surety and Insurance Corporation. * In that case, the respondent very briefly replied to the point urging that the court erred in overruling petitioner’s motion for summary judgment. The respondent apparently felt secure in the belief that appeals cannot lie where orders are interlocutory in nature, and that appeals cannot lie from those portions of orders which are interlocutory until a final judgment has been reached in the case. The respondent in the McBride case thought it sufficient to say: “In view of the very recent Supreme Court opinions in the cases of Wright v. Wright, 154 Texas 138 , 274 S.W. 2d 670 , and Rogers v. Royalty Pooling Co., 157 Texas 304 , 302 S.W. 2d 938 , we will not unnecessarily lengthen this writing. One comment in connection with this point, however, seems indicated. Contrary to the position that petitioners have taken in its application, the rule as announced by this Honorable Court in the above cases is not ‘downright and unfair.’ ” As pointed out by this court, speaking through the Honorable Justice Garwood in the Wright case, supra, “the benefits of such a rule as petitioner urges would well be outweighed by the resultant confusion.”
Opinion delivered and filed October 16, 1958.
Post 442, 322 S.W. 2d 492 .