Allstate Insurance Co. v. Smith

428 S.W.2d 807, 11 Tex. Sup. Ct. J. 424, 1968 Tex. LEXIS 387

Opinion

ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Petitioner’s original motion for summary judgment was overruled. The case was then submitted to a jury on special issues. When the members of the jury were unable to agree, they were discharged and an order was entered on October 13, 1966, declaring a mistrial. Thereafter on January 23, 1967, petitioner filed an amended motion for summary judgment, which was granted. This judgment has been reversed and the cause remanded, because the Court of Civil Appeals concluded that the amended motion for summary judgment was not timely filed. It reasoned that a motion for summary judgment comes too late when filed after the moving party’s motion for instructed verdict has been overruled in the course of a conventional trial. 423 S.W.2d 600.

We are not satisfied that the holding of the Court of Civil Appeals is sound. It is our opinion, however, that a material issue of fact is shown by the summary judgment proofs, and the judgment of the Court of Civil Appeals is therefore correct. The application for writ of error is accordingly Refused, No Reversible Error.