DISSENTING OPINION
I respectfully dissent.
This is a suit on a promissory note brought by the owner and holder of the note against one of the makers. Although the defendant had every opportunity to properly oppose the granting of the summary judgment and inject by affidavit any defense he might have, he failed to show the existence of a dispute as to a fact on a controlling issue.
J. C. Mitchell sued T. M. Shearer, Sr. to recover the unpaid balance on a note for past due interest and attorney fees, alleging that $9798.13 was the unpaid balance due. The trial court granted plaintiff's motion for summary judgment. Plaintiff alleged that on or about January 13, 1964 a corporation by the name of Frank's Credit Clothiers, Inc., of which T. M. Shearer, Sr. was President, executed a promissory note in the amount of $11,686.11 to the First Victoria National Bank, Victoria, Texas, payable in weekly installments of $100.00 per week including interest, payments to begin January 28, 1964. Plaintiff alleged in his petition and again as a part of his sworn motion for summary judgment that defendant T. M. Shearer, Sr. individually signed the note and that plaintiff J. C. Mitchell endorsed said note. Plaintiff further alleged that on February 23, 1966 he was forced to pay $9798.13, the unpaid balance of said note including interest; that the note was assigned to him, J. C. Mitchell without recourse on the First Victoria National Bank of Victoria, Texas and that he, J. C. Mitchell was the owner and holder of said note. The defendant filed a general denial. Subsequently, plaintiff Mitchell filed his affidavit which set forth the essential proofs which would entitle him to summary judgment. They are (1) that he was the owner and holder of the note, (2) that certain payments had been made with certain credits properly allowed, (3) that a sworn copy of the original note was attached and made a part of the affidavit and (4) that the sum of $9798.13 was due and owing. See Southwestern Fire Casualty Co. v. LaRue, 367 S.W.2d 162 (Tex.Sup. 1963), dissenting opinion by Chief Justice Calvert at page 168 (case not decided on this point). Defendant filed a general denial followed by a verified answer to the summary judgment and not a reply affidavit. This would not satisfy the requirement as to affidavits of summary judgments. Rule 166 — A T.R.C.P. In addition to the foregoing, the defendant as a part of the same answer filed numerous exceptions to plaintiff's original pleadings, none of which were sworn to. On page five of this pleading, defendant did file an affidavit stating that he had read the foregoing `paragraph number V' and that said paragraph is `true and correct.' *Page 861 This was sworn to before a notary public. Paragraph V is as follows:
"Further, but subject in all things to the foregoing Pleas and exceptions and still relying thereon this defendant shows that the subject matter of Plaintiff's Suit and especially the so-called Note in Plaintiff's Exhibit `A' is involved in long and complicated series of transactions, contracts and agreements between Plaintiff and this Defendant. Defendant shows that he, the defendant, has paid more than $4400.00 toward the liquidation of the so called Note and that the balance due thereon in a somewhat excess of $5000.00 plaintiff was obligated to pay and should have paid. However the said plaintiff was not forced to pay the balance due on said note, but voluntarily paid the same, in the manuever used to make plausible a claim against this defendant. This defendant denies that he is liable for any amount on the said alleged Note, Plaintiff alleges Plaintiff was forced to pay."
The above statement is couched in legal conclusions, vague and unclear language, evidencing an attempt apparently, to show some past condition or agreement relating to the payment of a delivered instrument. The language would tend to vary by parol the terms of the written instrument. Such statements would not be admissible in evidence upon a trial of the case. Shepherd v. Erickson, 416 S.W.2d 450 (Tex.Civ.App. — Houston 1967) and cases cited therein.
Appellant's first point is that the court erred in rendering summary judgment on the pleadings without having passed upon defendant's appellant's plea in abatement, misjoinder and non-joinder of parties and without ruling upon defendant's appellant's special exceptions to plaintiff's original petition. This point is multifarious and should be overruled. Rule 4, Tex.R.Civ.P.; see Appellate Procedure in Texas, Section 12.4(4) and the collection of cases cited therein; Johnson-Sampson Const. Co. v. W W Waterproofing Co., 274 S.W.2d 926 (Tex.Civ.App. — Amarillo 1953, n.r.e.). In passing, however, none of defendant's exceptions were defenses that would have any merit unless sworn to in accordance with the requirements of Rule 93 Tex.R.Civ.P. Similarly, Rules 94 and 95 Tex.R.Civ.P. provide that other affirmative defenses must be affirmatively plead. On the other hand plaintiff's proof in the form of an affidavit with a sworn copy of the note attached was sufficient to make out his case. Defendant's defensive facts, if any, must be sworn to in order to defeat the motion for summary judgment. See Southwestern Fire Casualty Co. v. LaRue, supra, at page 163. It has been repeatedly held by our courts that where the moving party's adversary filed no counter affidavit, and made no showing other than that stated in his pleadings nor made any showing to the effect that affidavits on his behalf were unavailable, such adversary has in effect admitted the sworn facts as alleged by movant's affidavits to be true. See this Court's opinion in Usher v. Glass, Sorenson McDavid Insurance Co., 409 S.W.2d 880 (Tex.Civ.App. — Corpus Christi 1966, n.r.e.); Hill v. Caparino, 370 S.W.2d 760 (Tex.Civ.App. — Houston 1963, n.w.h.); Gray v. Storey, 383 S.W.2d 487 (Tex.Civ.App. — Fort Worth 1964, n.w.h.); Futch v. Greer, 353 S.W.2d 896 (Tex.Civ.App. — Amarillo 1962, ref. n.r.e., certiorari denied 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721, 1962).
Appellant contends in his second point that the trial court erred in rendering summary judgment when there were issues of fact raised by the pleadings. The defendant's pleadings do not have the same effect of raising a fact issue when tested along side the plaintiff's sworn motion, his affidavit and the promissory note which was introduced into evidence. Plaintiff Mitchell alleged that Frank's Credit Clothiers was insolvent; that he executed the note as an indorser; that he had the note in his hands and introduced the same into evidence, all of which was sufficient to make out a prima facie case. See Negotiable *Page 862 Instruments Act, Art. 5932, Tex.Rev.Civ.Stat.Ann., Sec. 17, para. 6; Art. 5936, Tex.Rev.Civ.Stat.Ann., Sec. 60. Defendant's one paragraph which was sworn to by reference, is all that could have been considered by the trial court as a defense to the note. In my opinion it does not meet the requirements of subdivision (e) of Rule 166 — A, Tex.Rev.Civ.Stat.Ann. It does not raise an issue of material fact with sufficient particularity so that treating such statement as sworn testimony it still does not contradict any material fact shown by the plaintiff's motion, affidavit and note.
The defendant did not deny the execution of the note but concedes this fact in his brief. He does not plead any of the affirmative defenses including payment, fraud, etc. under Rule 94.
If it can be said that defendant is contesting plaintiff's legal capacity to sue or that the plaintiff is not entitled to recover in the capacity in which he sues, plaintiff's pleadings do not meet the test of Rule 93 which requires that the same be sworn to by the defendant. It is observant that the appellant has not plead any specific payment in any form. Under Rule 95, payment is an affirmative defense which requires that the defendant file his account stating directly the nature of such payment, and the several items thereof; `* * * failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.' Defendant's one paragraph sworn statement most of which consisted of conclusions, does not raise any fact issue so as to preclude the granting of summary judgment for appellee. Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App. — Houston 1963, n.r.e.). See also Hall v. Fowler, 389 S.W.2d 730 (Tex.Civ.App. — Dallas 1965) and Fisher v. Howard, 389 S.W.2d 482 (Tex.Civ.App. — Dallas 1965); Southwestern Fire Casualty Co. v. LaRue, supra.
Legal conclusions in affidavits opposing a motion for summary judgment are insufficient to create a fact issue where they are vague and indefinite and especially where there is evidence of material facts in the affidavits and other evidence introduced by the movant. Schull v. Lower Neches Valley Authority, 416 S.W.2d 505 (Tex.Civ.App. — Beaumont 1967). See Crain v. Davis, 417 S.W.2d 53 (Tex.Sup. 1967) on sufficiency of affidavits when tested for admissibility.
I would affirm the judgment of the trial court.