On Motion For Rehearing.
PRICE, Chief Justice.It must be elementary that where the trial court on an unverified motion for summary judgment enters a judgment in favor of the movant on the record, which then consists only of the pleadings of the parties, the appellate court has exactly the same matter before it that the trial court had.
In this case this court took into consideration the judgment in cause No. 2525 for the reason that this court considered the judgment in said cause part of the pleadings. It is apparent from the plaintiff’s petition that plaintiff sought to make such judgment a part thereof. The judgment was a record of the court in which the instant cause is pending.
While a motion for summary judgment is somewhat in the nature of a general demurrer, and likewise in the nature of a motion on the pleadings, it is, however, not exactly the same as either. In some respects it is sui generis. The above is true where the record consists only of the pleadings. In this case no evidence was introduced, no affidavits filed. The record proper can only be invoked as justification for the judgment entered. The record consisted only of the pleadings of the parties. No evidence appears to have been heard on the motion for summary judgment, no affidavits were filed by either party in connection with the motion. There was no stipulation as to facts. The only support for the judgment rendered herein is the pleadings. If the pleadings affirmatively show as a matter of law that plaintiff was without claim of title to any of the lands in controversy, then the judgment of the trial court was correct. The burden is on the movant in case of an application for summary judgment, to show that as a matter of law under the undisputed material facts he is entitled to the judgment sought. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318; Parmelee v. *353Chicago Eye Shield Co., 8 Cir., 157 F.2d 582, 168 A.L.R. 1130; Doehler Metal Furn. Co. v. U. S., 2 Cir., 149 F.2d 130; Grimes v. N. Y. Life Ins. Co., D.C., 84 F.Supp. 989; Fonville v. Southern Materials Co., Tex.Civ.App., 239 S.W.2d 885; Hunt v. Southern Materials Co., Tex.Civ.App., 240 S.W.2d 400. A motion for summary judgment may not be granted unless it appears that no material facts are in controversy, and involved only is the application of the law to undisputed facts. This is clearly the rule where such judgment is sought on the pleadings alone. Friedman v. Washburn, 7 Cir., 145 F.2d 715.
To justify the judgment rendered in this cause we must say from the pleadings and pleadings alone that no issue of title in the plaintiff was thereby raised. It does not appear as a matter of law that the same lands are involved in this case as were involved in case No. 2525. The only basis for the summary judgment in favor of defendant was that all of plaintiff’s title had been divested by the enforcement of the judgment in cause 2525. It does not appear from the record that all of the lands sued for by plaintiff were sold in pursuance of the judgment in cause No. 2525.
On our own motion we ordered that certain matters which we-then deemed part of the record proper herein, be sent up in connection with this appeal. On more mature deliberation we have concluded that save and except the judgment in cause No. 2525 the matters ordered certified up were improperly ordered certified up. Appellee was not given notice of our purpose to' order these matters certified up as a part of the transcript. It is the uniform custom of this court to give such notice, but through some mistake appellees were not given notice. It is therefore ordered that appellee be given leave to file another motion for rehearing, and in connection therewith to have certified any portion of the record that he may deem as not shown by the transcript and augmented transcript. The record herein fails to show that there are no issues as to the material facts.
It is ordered that the motion for rehearing be in all things overruled.