' In our opinion, any claim for payment of excess sick leave will therefore not accrue until the official vacates his office. See Ditto Investment Co. v. Ditto, 293 S.W.2d 267, 269 (Tex.Civ.App.-Fort Worth 1956, no writ). SUMMARY
Despite this waiver of issues on this count, appellant, by motion for new trial and on this appeal, asserts that this claim was not barred, since limitations do not run in case of an independent executrix. In support thereof he cites Ditto Investment Co. v. Ditto. Tex.Civ.App., 293 S.W.2d 267, no writ. Although there is some doubt as to the application of the rule set forth in Ditto, since the amendment of Sec. 146 of the Probate Code in 1957, it is seen that there is no showing that appellee was independent executrix of this estate. The order of appointment was not introduced into evidence.
That responsibility lies with the trier of the facts alone and not with the trial court on the summary judgment hearing. Gulbenkian v. Penn, ( 151 Tex. 412) 252 S.W.2d 929 (Tex.Sup. 1952); Ditto Investment Co. v. Ditto, (Tex.Civ.App.) 293 S.W.2d 267; Rattan v. Kirker, (Dicker) (Tex.Civ.App.) 373 S.W.2d 306. (3) The reason for the rule that the trial court cannot weigh evidence or resolve conflicts in the testimony on a summary judgment proceeding is that the proceeding is not intended to deprive litigants of a full hearing on the merits of any issues of fact. Gulbenkian v. Penn, ( 151 Tex. 412) 252 S.W.2d 929 (Tex.Sup. 1952) and Trammel v. Trammel, (Tex.Civ.App.) 290 S.W.2d 324 (Waco Civ.App. 1956) ref. n. r. e.
Appellant concedes that prior to the revision of the Probate Code in 1955 it was generally held it was not necesary present a claim to an independent executor. See Hunter v. Cook, 375 S.W.2d 574, wr. dism.; Mullins v. Berryman, Tex.Civ.App., 296 S.W.2d 805, wr. ref. n. r. e.; Ditto Investment Co. v. Ditto, Tex.Civ.App., 293 S.W.2d 267, no wr. hist. Appellant urges these holdings have been changed by the Probate Code, in that Sec. 314 requires a claim be legally presented to the 'representative' and rejected before a judgment may be rendered upon same. The possibility of such a change has been expressed by two writers.
See Westbrook v. Adams, Tex.Civ.App., 17 S.W.2d 116. In the case of Ditto Investment Company v. Ditto, Tex.Civ.App., 293 S.W.2d 267, 269, which was a summary judgment case, the court said: "We think the two-year statute of limitation did not apply to appellant's claim.
See Westbrook v. Adams, Tex.Civ.App., 17 S.W.2d 116. In the case of Ditto Investment Co. v. Ditto, Tex.Civ.App., 293 S.W.2d 267, 269, which was a summary judgment case, the court said: 'We think the two-year statute of limitation did not apply to appellant's claim.
There was a former appeal by this appellant from a summary judgment in favor of appellee. It is reported in Ditto Investment Company v. Ditto, Tex.Civ.App., 293 S.W.2d 267. After a jury had been empaneled and sworn, appellant offered Dr. Ditto as a witness to prove up the claim, but his testimony was excluded by the court on the ground that he was disqualified from testifying under the provisions of Article 3716, Vernon's Ann.Civ.St.