CULVER, Justice.
Appellee, by motion, seeks to have this appeal dismissed. Appellant Richards in his bill of review sued appellee Smith and J. Frank Gragg. The summary judgment, while disposing of the claim against appellee, reserved decision on appellant’s claim against the defendant Gragg and therefore appellee says no final judgment has been rendered by the trial court in this cause. We differ with appellee for the reason that in our opinion the cause of action against appellee Smith and Gragg was severable and neither was a necessary par[726]*726ty in a suit brought against the other. Big-gins v. Oltmer Iron Works, 7 Cir., 154 F.2d 214.
Execution had already issued on the original judgment entered in appellee’s favor against appellant and this appeal was properly taken.
Appellee’s motion to dismiss is overruled.
This is an appeal from a summary judgment entered in a Dallas County district court wherein appellant, Ben H. Richards, sought by bill of review to set aside a judgment rendered in said court against him on February 13, 1950, which had become final. The trial court found that appellant failed to raise any fact issue which would entitle him to have his action tried on its merits. Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 130 F.2d 1016.
In the original case, appellee Smith asserted that Richards listed his home for sale with one Gragg; that Gragg agreed to pay Smith $1,000 out of the commission if Smith would effect a sale of the property; that Richards knew of this agreement between Gragg and Smith and acquiesced therein; that the property was sold through the efforts of Smith and therefore both Gragg and appellant became obligated to Smith in the sum of $1,000. Judgment was thereafter rendered against Gragg and Richards, jointly and severally, in favor of appellee Smith for the sum of $1,000.
Appellant predicates his appeal upon four points: (1) That he was deprived of a jury trial in the original cause without opportunity to object to the denial of this right. (2) Because there was no written contract obligating appellant to pay a commission to appellee. (3) That the original judgment was based on hearsay evidence, and, (4) that a genuine issue of material fact was raised as to whether or not appellant was negligent in not appearing at the trial of the original case.
The first three points, we think, at best merely relate to irregularities or errors of law which do not entitle appellant to have the judgment set aside in this equitable proceeding and are overruled. “The said authorities also hold that a suit in equity to set aside a judgment must challenge the very foundation of the judgment and must not involve a mere revision of the judgment because of errors the trial court may have made on the original trial.”' Gray v. Moore, Tex.Civ.App., 172 S.W.2d 746, 751, writ refused. It is held in Kelly et ux. v. Wright et al., 144 Tex. 114, 188 S.W.2d 983, 986, “No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence or mistake either of the party seeking the relief or his counsel.” Though not necessary to this decision, it might be pointed out in connection with appellant’s point three, that the only support for this is to be found in appellant’s affidavit. Obviously the appellant not being present at the trial, he would have had no first hand knowledge of what transpired and his testimony to such effect would not be admissible. Rule 166-A, Rules of Civil Procedure, with reference to the form of affidavits, reads: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
A brief resume of the facts will,, we believe, suffice to show that no genuine-issue of material fact as to appellant’s negligence is apparent in the record. After appellant and the defendant, Gragg, had answered in the original cause, appellant’s oral deposition was taken by the attorneys, representing the appellee. In his affidavit, appellant charges, “When the defendant’s deposition was taken in said cause as alleged hereinabove, the attorney for plaintiff' J. Leslie Smith, stated that this deposition of defendant would be sufficient for the trial and that defendant (Richards) did not need to be at court.” Appellant says this misled him, and caused him to believe that appellee Smith had in effect abandoned any claim against him. The statement was made in the presence of appellant and his. [727]*727attorneys. Appellant had the opportunity to consult with them upon what was meant by this statement and failed to do so. We think this would not be sufficient to raise a fact issue. Kansas City Life Insurance Co. v. Warbington, Tex.Civ.App., 113 S.W. 988. Other facts shown, chiefly in appellant’s own affidavit, conclusively lead to the belief that appellant did not depend on any statement made by appellee’s attorney, but to the contrary, from the beginning to the end, relied solely on his co-defendant, Gragg. In his affidavit, appellant says that as soon as the citation in the original case was served upon him, he immediately sought out the defendant Gragg, and,
“that Defendant Gragg assured plaintiff that he would see his attorneys and would take care of the entire matter immediately; that he would arrange to protect plaintiff and hold him free from any expense as the result of the filing of the suit; that an answer was timely filed in said cause for the plaintiff, a defendant therein, and for defendant J. Frank Gragg, who was also a defendant in that suit; that on or about the 29th day of April, 1949, plaintiff, as defendant in said cause, appeared at the office of the attorneys for Smith where his oral deposition was taken; that at this time plaintiff was told that the case would be tried by a jury; that at sometime during the fall of 1949, the exact date being unknown to plaintiff at this time, he was notified that the attorneys engaged by Gragg to represent them as defendants in said cause, were withdrawing from the case that plaintiff again contacted his co-defendant, J. Frank Gragg, who informed plaintiff that he was securing the services of another attorney to represent them and that in the meantime he was making arrangements to dispose of Smith’s claim; that plaintiff believed that the defendant Gragg would again secure the service of an attorney as he had promised to do and as he had done on the prior occasion that in view of the circumstances surrounding the original payment; that since he had paid the commission in full and since his co-defendant, J. Frank Gragg owed him the legal duty as well as the moral obligation to protect him from any expense in having to pay the commission a second time, plaintiff was justified in relying on the representations so made to him by Gragg.”
After appellant’s deposition had been taken in the original case, his attorneys wrote him on November IS, 1949, as follows:
“The above suit has been set for pretrial on the 7th day of December, A.D. 1949, at 11:00 o’clock A.M.
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CULVER, Justice.
Appellee, by motion, seeks to have this appeal dismissed. Appellant Richards in his bill of review sued appellee Smith and J. Frank Gragg. The summary judgment, while disposing of the claim against appellee, reserved decision on appellant’s claim against the defendant Gragg and therefore appellee says no final judgment has been rendered by the trial court in this cause. We differ with appellee for the reason that in our opinion the cause of action against appellee Smith and Gragg was severable and neither was a necessary par[726]*726ty in a suit brought against the other. Big-gins v. Oltmer Iron Works, 7 Cir., 154 F.2d 214.
Execution had already issued on the original judgment entered in appellee’s favor against appellant and this appeal was properly taken.
Appellee’s motion to dismiss is overruled.
This is an appeal from a summary judgment entered in a Dallas County district court wherein appellant, Ben H. Richards, sought by bill of review to set aside a judgment rendered in said court against him on February 13, 1950, which had become final. The trial court found that appellant failed to raise any fact issue which would entitle him to have his action tried on its merits. Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 130 F.2d 1016.
In the original case, appellee Smith asserted that Richards listed his home for sale with one Gragg; that Gragg agreed to pay Smith $1,000 out of the commission if Smith would effect a sale of the property; that Richards knew of this agreement between Gragg and Smith and acquiesced therein; that the property was sold through the efforts of Smith and therefore both Gragg and appellant became obligated to Smith in the sum of $1,000. Judgment was thereafter rendered against Gragg and Richards, jointly and severally, in favor of appellee Smith for the sum of $1,000.
Appellant predicates his appeal upon four points: (1) That he was deprived of a jury trial in the original cause without opportunity to object to the denial of this right. (2) Because there was no written contract obligating appellant to pay a commission to appellee. (3) That the original judgment was based on hearsay evidence, and, (4) that a genuine issue of material fact was raised as to whether or not appellant was negligent in not appearing at the trial of the original case.
The first three points, we think, at best merely relate to irregularities or errors of law which do not entitle appellant to have the judgment set aside in this equitable proceeding and are overruled. “The said authorities also hold that a suit in equity to set aside a judgment must challenge the very foundation of the judgment and must not involve a mere revision of the judgment because of errors the trial court may have made on the original trial.”' Gray v. Moore, Tex.Civ.App., 172 S.W.2d 746, 751, writ refused. It is held in Kelly et ux. v. Wright et al., 144 Tex. 114, 188 S.W.2d 983, 986, “No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence or mistake either of the party seeking the relief or his counsel.” Though not necessary to this decision, it might be pointed out in connection with appellant’s point three, that the only support for this is to be found in appellant’s affidavit. Obviously the appellant not being present at the trial, he would have had no first hand knowledge of what transpired and his testimony to such effect would not be admissible. Rule 166-A, Rules of Civil Procedure, with reference to the form of affidavits, reads: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
A brief resume of the facts will,, we believe, suffice to show that no genuine-issue of material fact as to appellant’s negligence is apparent in the record. After appellant and the defendant, Gragg, had answered in the original cause, appellant’s oral deposition was taken by the attorneys, representing the appellee. In his affidavit, appellant charges, “When the defendant’s deposition was taken in said cause as alleged hereinabove, the attorney for plaintiff' J. Leslie Smith, stated that this deposition of defendant would be sufficient for the trial and that defendant (Richards) did not need to be at court.” Appellant says this misled him, and caused him to believe that appellee Smith had in effect abandoned any claim against him. The statement was made in the presence of appellant and his. [727]*727attorneys. Appellant had the opportunity to consult with them upon what was meant by this statement and failed to do so. We think this would not be sufficient to raise a fact issue. Kansas City Life Insurance Co. v. Warbington, Tex.Civ.App., 113 S.W. 988. Other facts shown, chiefly in appellant’s own affidavit, conclusively lead to the belief that appellant did not depend on any statement made by appellee’s attorney, but to the contrary, from the beginning to the end, relied solely on his co-defendant, Gragg. In his affidavit, appellant says that as soon as the citation in the original case was served upon him, he immediately sought out the defendant Gragg, and,
“that Defendant Gragg assured plaintiff that he would see his attorneys and would take care of the entire matter immediately; that he would arrange to protect plaintiff and hold him free from any expense as the result of the filing of the suit; that an answer was timely filed in said cause for the plaintiff, a defendant therein, and for defendant J. Frank Gragg, who was also a defendant in that suit; that on or about the 29th day of April, 1949, plaintiff, as defendant in said cause, appeared at the office of the attorneys for Smith where his oral deposition was taken; that at this time plaintiff was told that the case would be tried by a jury; that at sometime during the fall of 1949, the exact date being unknown to plaintiff at this time, he was notified that the attorneys engaged by Gragg to represent them as defendants in said cause, were withdrawing from the case that plaintiff again contacted his co-defendant, J. Frank Gragg, who informed plaintiff that he was securing the services of another attorney to represent them and that in the meantime he was making arrangements to dispose of Smith’s claim; that plaintiff believed that the defendant Gragg would again secure the service of an attorney as he had promised to do and as he had done on the prior occasion that in view of the circumstances surrounding the original payment; that since he had paid the commission in full and since his co-defendant, J. Frank Gragg owed him the legal duty as well as the moral obligation to protect him from any expense in having to pay the commission a second time, plaintiff was justified in relying on the representations so made to him by Gragg.”
After appellant’s deposition had been taken in the original case, his attorneys wrote him on November IS, 1949, as follows:
“The above suit has been set for pretrial on the 7th day of December, A.D. 1949, at 11:00 o’clock A.M. At the time your deposition was taken in the office of the attorneys for plaintiff in the above cause, you advised us you would communicate with us within the next two or three days. By reason of your failure to ■communicate with us and make arrangements for us to further represent you in the case we are compelled to withdraw and will do so as a matter of record immediately. If you desire to have legal representation in this case you should employ counsel in time to have them represent you at the pretrial above mentioned.”
At the pretrial hearing on December 7th, neither Gragg nor appellant were present. Indeed, so far as the record shows, the appellant Richards had no actual notice of the setting on February 13th. It is reasonable to presume, however, that having placed his reliance in his co-defendant Gragg and not having appeared in person or by his attorney on the pretrial setting in December, 1949, he would not have responded to any notice of a subsequent hearing. We think that appellee or his attorneys were under no legal duty in view of the foregoing, to notify appellant of the February setting. Davis v. Cox, Tex.Civ.App., 4 S.W.2d 1008.
Regrettable as it is that, under the circumstances, appellant may be required to pay an obligation twice, such result has been brought about entirely through his own negligence in relying upon his agent Gragg.
Judgment of the trial court is affirmed.