Estes v. Bank of Commerce

Court of Appeals of Texas

Estes v. Bank of Commerce

478 S.W.2d 558, 1972 Tex. App. LEXIS 3014

CourtCourt of Appeals of Texas

DecidedJanuary 28, 1972

DocketNo. 4526

StatusPublished

Cited by1 cases

This text of 478 S.W.2d 558 (Estes v. Bank of Commerce) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Estes v. Bank of Commerce, 478 S.W.2d 558, 1972 Tex. App. LEXIS 3014 (Tex. Ct. App. 1972).

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WALTER, Justice.

Bank of Commerce recovered a partial summary judgment against Johnnye Pat Estes on a note for $30,435.90. The court thereafter heard evidence on the question of attorney’s fees and entered a final judgment on September 2, 1971 from which judgment Johnnye Pat Estes has appealed.

The Bank went to its trial on its third amended original petition and made a motion for summary judgment on its first alternate pleading contained in paragraph ten. The Bank alleged that Fred M. Newman acting as Independent Executor of the Estate of Ethel Reagan Estes and as attorney in fact for Johnnye Pat Estes executed and delivered to it a note on or about August 7, 1967 in the amount of $32,951.68. It alleged that Newman and Estes were notified to produce the original note during the trial of the case. A copy of said note was attached to the Bank’s petition and marked Exhibit G and was certified by the Bank President as being a true and correct copy of the original note.

[559]*559However, neither the original note nor a sworn or certified copy thereof showing that the Bank was the owner or holder appears in the summary judgment proof as required by Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.Ct.1971).

The judgment is reversed and the cause is remanded.

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WALTER, Justice.

Bank of Commerce recovered a partial summary judgment against Johnnye Pat Estes on a note for $30,435.90. The court thereafter heard evidence on the question of attorney’s fees and entered a final judgment on September 2, 1971 from which judgment Johnnye Pat Estes has appealed.

The Bank went to its trial on its third amended original petition and made a motion for summary judgment on its first alternate pleading contained in paragraph ten. The Bank alleged that Fred M. Newman acting as Independent Executor of the Estate of Ethel Reagan Estes and as attorney in fact for Johnnye Pat Estes executed and delivered to it a note on or about August 7, 1967 in the amount of $32,951.68. It alleged that Newman and Estes were notified to produce the original note during the trial of the case. A copy of said note was attached to the Bank’s petition and marked Exhibit G and was certified by the Bank President as being a true and correct copy of the original note.

[559]*559However, neither the original note nor a sworn or certified copy thereof showing that the Bank was the owner or holder appears in the summary judgment proof as required by Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.Ct.1971).

The judgment is reversed and the cause is remanded.

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478 S.W.2d 558, 1972 Tex. App. LEXIS 3014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estes-v-bank-of-commerce-texapp-1972.

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