Builders Bargain Center, Inc. v. National Gypsum Co.

Court of Appeals of Texas

Builders Bargain Center, Inc. v. National Gypsum Co.

398 S.W.2d 804, 1966 Tex. App. LEXIS 2124

Court of Appeals of Texas·Decided January 12, 1966·No. No. 14436·Published·Cited by 3 cases

Opinion

CADENA, Justice.

The trial court rendered judgment against Builders Bargain Center, Inc., defendant, in a suit upon a sworn account filed by National Gypsum Company. Appellant here contends that the court erred in entering such judgment because the affidavit supporting plaintiff’s petition does not state that the facts sworn to are true “within the knowledge of affiant,” as required by Rule 185, Texas Rules of Civil Procedure.

This is not a default judgment case. Appellant filed an unsworn general denial and was present at the hearing on the merits. No exception was filed in the trial court questioning the sufficiency of the affidavit.

Rule 90, T.R.C.P., provides that, except in the case of a default judgment, every defect, omission or fault in a pleading, whether of form or substance, shall be deemed to have been waived and shall not be ground for reversal, unless complaint is made in the trial court. The objection urged by appellant cannot be made for the first time on appeal. Maxwell v. Winner Gas Stove Co., Tex.Civ.App., 263 S.W. 944, no writ.

The petition was introduced in evidence without objection by appellant. In addition, there was evidence showing that three officers of appellant corporation admitted that the account was owed. The evidence is sufficient to support the judgment.

The judgment of the trial court is affirmed.

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CADENA, Justice.

The trial court rendered judgment against Builders Bargain Center, Inc., defendant, in a suit upon a sworn account filed by National Gypsum Company. Appellant here contends that the court erred in entering such judgment because the affidavit supporting plaintiff’s petition does not state that the facts sworn to are true “within the knowledge of affiant,” as required by Rule 185, Texas Rules of Civil Procedure.

This is not a default judgment case. Appellant filed an unsworn general denial and was present at the hearing on the merits. No exception was filed in the trial court questioning the sufficiency of the affidavit.

Rule 90, T.R.C.P., provides that, except in the case of a default judgment, every defect, omission or fault in a pleading, whether of form or substance, shall be deemed to have been waived and shall not be ground for reversal, unless complaint is made in the trial court. The objection urged by appellant cannot be made for the first time on appeal. Maxwell v. Winner Gas Stove Co., Tex.Civ.App., 263 S.W. 944, no writ.

The petition was introduced in evidence without objection by appellant. In addition, there was evidence showing that three officers of appellant corporation admitted that the account was owed. The evidence is sufficient to support the judgment.

The judgment of the trial court is affirmed.

Builders Bargain Center, Inc. v. National Gypsum Co., 398 S.W.2d 804, 1966 Tex. App. LEXIS 2124 (Tex. Ct. App. 1966).

Pincite

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Opinion

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