Smith v. Vasquez , 338 S.W.2d 773 ( 1960 )

POPE, Justice.

Carl Smith, doing business as Carl Smith Motors, filed this suit against Andres E. Vasq.uez in the nature of a bill of review to set aside a default judgment which Vasquez had taken against him in a former suit. In the present action, the court granted a summary judgment in favor of defendant Vasquez. Smith, on this appeal, has several points, but all of them center around the complaint that Vasquez’s motion for summary judgment was supported by the affidavit of Vasquez’s attorney rather than by Vasquez, the party.

Vasquez’s attorney made the supporting affidavit to the motion. It was made upon statements of fact and not upon information and belief. The affidavit asserted facts which, if true, would demonstrate that Smith had not been and could not show that he was diligent in failing to answer the citation in the former case, and that he was also lacking in diligence in prosecuting a motion for new trial filed in that former case, which also went by default. Vasquez’s attorney was the one who handled and attended to all of these matters. His affidavit shows that he made repeated efforts to rouse some interest in the defense of the action he had instituted, and that his efforts were unheeded. These were facts which the attorney knew and which his client probably did not know. It was Vasquez’s attorney who made the affidavit, since he was the one who possessed the facts concerning the former trial. Fonville v. Southern Materials Co., Tex.Civ.App., 239 S.W. 2d 885. Moreover, neither by pleading nor by showing on the motion for summary judgment, did Smith show a meritorious defense to the original action brought by a minor to rescind his contract. The judgment is affirmed.