Heath v. City of Abilene , 1960 Tex. App. LEXIS 2370 ( 1960 )

COLLINGS, Justice.

This is an appeal from a summary judgment in the sum o-f $346.84 and costs in favor of the City of Abilene and the Abilene Independent School District against Millard Heath and Randall Storey, doing business under the firm name of Universal Metal Crafts. Plaintiffs brought suit against defendants in the County Court at Law of Taylor County seeking judgment for alleged delinquent taxes on personal property assessed to said defendants for the years 1957 and 1958 and for penalties and interest. The defendants answered by a general denial.

Plaintiffs thereafter filed a motion for summary judgment and an attached affidavit of their tax assessor and collector showing the certified tax roll pertaining thereto, the delinquent tax -roll showing the taxes to be unpaid and the body of the affidavit showing the total amount of taxes, penalty and interest then due and owing to be $346.84. Defendants were duly served with such motion for summary judgment and accompanying affidavits. Plaintiffs’ petition, motion for summary judgment and supporting affidavits set out facts which if proven upon a trial would, ■ in the absence of some showing to the contrary, require judgment for the plaintiffs. The defendants filed no answer or opposing affidavits to plaintiffs’ motion for summary judgment and made no showing that affidavits or other evidence essential to justify their position were, not available. Under such circumstances, there was no genuine issue as to any material fact. Defendants are held to have, in effect, admitted the facts shown in plaintiffs’ motion for summary judgment and supporting affidavits. Plaintiffs were therefore entitled to judgment as prayed, as a matter of law. Rule 166-A, Texas Rules of Civil Procedure; Gulf, Colorado & S. F. Ry. Co. v. McBride, Tex., 322 S.W.2d 492; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236.

The judgment of the trial court is affirmed.