On Motion for Rehearing.
In view of appellee’s counter-points, presented in the alternative, the statement made in original opinion of “no contention of any lack of a bona fide dispute relative to the issues theretofore joined in the instant suit for cancellation of employment *558and answering cross-action” is hereby withdrawn.
But obviously the pleadings of the parties in cause No. 4527, standing alone, involve a bona fide dispute to which Rule 166-A is inapplicable. We have here a sworn petition (second amended) seeking cancellation of the contract for legal services on grounds of fraud and imposition; her sworn reply to motion for summary judgment detailing such grounds; answered by defendant’s plea of nonjoinder of parties, numerous special exceptions, - a cross-action on basis of the contract, and in the alternative, for $250,000 for its wrongful breach. Said sworn resistance to the summary judgment proceedings consisted of numerous specific charges of fraud concerning material facts within affiant’s knowledge and of probable admissibility upon a trial to the merits. “Where facts on issue are uncertain or there is reasonable indication that a material fact is in dispute, case should not be disposed of by summary proceedings.” Ridenour v. Wilkes, Tex.Civ.App., 283 S.W.2d 401, 402, syl. 5.
Appellee reasserts with much vig- or that a presumption must be indulged in favor of the court’s judgment in cases where the record before the appellate court is incomplete. Certainly such presumption still obtains in total absence of a statement of facts, but since adoption of Rule 428, T. C.P., resort may be had to its liberal provisions in case of an incomplete record.1 The rule has been consistently made use of in such respect. “Under our rules and decisions ample opportunity is provided for the correction of the statement of facts subsequent to the thirty-day period mentioned in Rule 404 where it appears that the same is not properly prepared or some material portion has been omitted. Rules 428, 429 * * Pacific Fire Ins. Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486, 487. “If it were contended that the statement of facts was incomplete or incorrect it would be an easy matter to amend and correct the statement of facts under the provisions of Rules 428 and 429, T.R.C. P., * * McKay v. Kelly, Tex.Civ.App., 225 S.W.2d 992, 994. See also Patrick v. Simpson, Tex.Civ.App., 168 S.W.2d 315; Magnolia Petroleum Co. v. State, *559Tex.Civ.App., 218 S.W.2d 855, 862; Thompson v. Janes, Tex.Civ.App., 227 S.W.2d 330; Hanna v. Home Ins. Co., Tex.Civ.App., 260 S.W.2d 891.
The motion for rehearing is overruled.
. Of the omitted matters detailed in original opinion, the affidavit of Judge Peuri-foy is to effect that no evidence heard by him on entry of agreed judgment in cause No. 94-E/J was transcribed. Appellant’s reply to the motion for rehearing accounts for the missing exhibits as either appearing in the present transcript or relate to the Receivership statement of facts (checks, papers, etc.) and material only to that proceeding. In the same connection a second affidavit of Judge Peurifoy is attached to appellant’s motion, now quoted:
“This affidavit is to supplement the one made by me, which appears in the footnote of the opinion written and handed down by Mr. Justice Young in Cause No. 15291, 5th Court of Civil Appeals of Dallas;
“The above mentioned affidavit was signed by me without having been approved by the attorneys for John A. Rawlins or having been presented to them or inspected by them, or by Raw-lins himself, for the following reasons;
“Mr. John Pace, attorney for Betty Jean Mudge, told me that he had only until 12:00 o’clock of the day on which said affidavit was made to file same in the Court of Civil Appeals, and I inferred from his statement that he had obtained consent of the Court of Civil Appeals to file same and that 12:00 was his deadline;
“I requested Mr. Pace to get in touch with opposing counsel and ask them to-be present and he told me that he had tried to reach them but could not do so; I further certify that at the time the divorce case between Betty Jean Mudge and her husband, Edmund W. Mudge, Jr., was tried, being Cause No. 94-E/J, and the trial date being August 8, 1956, said Betty Jean Mudge was placed on the witness stand and in response to questions by Hon. R. Guy Carter, attorney for the defendant, she testified that she understood the agreement and the property settlement and she understood that it covered all her rights and obligations and she wanted the Judge to approve same.”