(dissenting).
I respectfully dissent. I would reverse and remand this case for trial on the merits.
Defendant Paul Hughes’ motion for summary judgment states only one ground and that is that there was no consideration for the instrument sued upon. The motion for summary judgment made by defendants First Security National Bank of Beaumont and Marcus Dougharty, Trustee, enlarges upon Paul Hughes’ motion only to the extent that it adds failure of consideration as an alternate pleading. Neither of these motions have supporting affidavits. For emphasis, I repeat a statement made by Justice Keith in his concurring opinion, as follows: “The only summary judgment ‘proof’ offered in support of the motion was the deposition of the principal defendant, Paul Hughes.”
Our Supreme Court of Texas has made it crystal clear that we must follow the rule stated in Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup.1965), as follows:
“Evidence which favors the movant’s position is not considered unless it is un-contradicted. If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony.”
In my opinion, the deposition of this interested witness, Paul Hughes, is not clear, direct and positive as to whether or not there was consideration for the note and deed of trust and there are many circumstances in such deposition tending to discredit and impeach his statement in the deposition that he did not receive any consideration of any kind.
*310Paul Hughes first testified, by deposition, that he executed the note and deed of trust sued upon and that he had made no payments on such note. After stating the conclusion that he did not receive any consideration of any kind, he then outlined his transaction with his uncle, James Hughes, in more detail. Viewing his testimony in the light most favorable to the party opposing the motion as we are required to do, in my opinion it shows the following: Paul Hughes agreed to buy a one-half interest owned by James Hughes in the East Texas Lumber Company. The total amount due was not stated, but was to be paid for at the rate of $150.00 per week. At the time of such purchase, James Hughes had executed some notes on behalf of the East Texas Lumber Company to the Kirbyville State Bank. Such notes were still outstanding. Paul Hughes made an application for an S.B.A. loan in the amount of $45,000.00 on behalf of the East Texas Lumber Company. (Apparently to retire the bank notes, among other things.) It was agreed an S.B.A. loan would be made in the amount of $28,000.00 if James Hughes would remain on the bank notes. The S.B.A. loan in the reduced amount was made in either December 1964 or January 1965. Paul Hughes had the deed of trust in question here recorded on June 22, 1965, and had it mailed to James Hughes. The pleadings show James Hughes died July 11, 1966 and the affidavit of Alice Hughes shows she found the note sued upon among James Hughes’ papers.
In my opinion, the deposition of Paul Hughes goes so far as showing affirmatively that there was a consideration for the execution of the note and deed of trust; or at the very least, that there was a genuine issue of fact as to whether there was a consideration. In addition, the circumstances of the transaction, that is, the recording by Paul Hughes of the deed of trust five or six months after the S.B.A. loan was made and the retention by James Hughes of the note among his papers for more than two years, tend to discredit and impeach the testimony by Paul Hughes that he received no consideration of any kind.
There is another substantial reason for my conclusion that this case must be reversed and remanded. Under the provisions of Rule 166-A, the moving party “shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Under the provisions of Article 3716, V.A.C.S., in an action such as this brought by an administratrix as plaintiff, “neither party shall be allowed to testify against the others as to any transaction with, or statement by, the * * * intestate * * * unless called to testify thereto by the opposite party.”
The entire factual defense to the suit on the note interposed by defendant Paul Hughes is based upon his own deposition which was not taken by the opposite party, that is, the intervenors. In order for the deposition to be competent summary judgment evidence against intervenors, under the rule itself, Paul Hughes labored under the burden of establishing in his motion that he was competent to testify to the matters therein stated. This not only was not included, but the record shows the converse — that he was incompetent' to testify to such matters. There can be no question as to this matter of competency being called to the attention of the trial court, as the Paul Hughes deposition is interspersed with objections on the part of the attorney for Alice Hughes specifically pointing out this matter. See Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 810 (1956).
I do not agree with the direct statement in the concurring opinion and the inference in the majority opinion that this case can be decided on the basis of the failure of the intervenors to do anything in the trial court. Under my interpretation of summary judgment law in this state, the movant has the entire burden of establishing as a matter of law that there is no genuine issue of fact and the failure of the opposing *311party to do anything will not aid the movant in discharging his burden. The Supreme Court in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex.Sup.1962), has engrafted upon summary judgment law a requirement that deficiencies in the “proof” which are “purely formal” must be pointed out to the court. However, my construction of the opinion is that such rule was specifically limited and never intended to cover the matters in controversy in the case before us which go directly to the heart of the defense interposed in this case. There is nothing in Rule 166-A which requires either an answer or controverting affidavits to a motion for summary judgment. There is no provision for exceptions to be filed and there is no requirement that a party must appear at a hearing on a motion for summary judgment in order to appeal from an adverse judgment. We can take judicial knowledge of the fact that such hearings are informal and no oral testimony taken; generally there is no statement of facts; and no record of any statements or arguments made by the attorneys. In the instant case, we have no statement of facts and there is no way for us to know what transpired at the hearing. The judgment makes the statement that all of the parties were before the court, including interve-nors. As stated in the majority opinion, summary judgments are not granted by default.
The deposition of Paul Hughes reveals that Joe Meadows and his partner in the East Texas Lumber Company, Jim White-side, were both acquainted with the facts surrounding the defense that there was no consideration for the execution of the note and deed of trust. Affidavits from those two were not offered in support of the motion for summary judgment. On a hearing of the merits of this case, even though Paul Hughes will not be competent to testify unless called by the opposing party under Article 3716, V.A.C.S., these two witnesses could be available for proof.