This appeal questions the correctness of a summary judgment rendered in favor of appellee.

The record on appeal fails to conclusively establish that there was no genuine tria-ble issue of a material fact under the issues as made by the complaint and the answer thereto. Under these circumstances, appellee was not entitled to judgment as a matter of law, and the trial court erred in holding to the contrary.

The judgment appealed is reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.

Reversed and remanded.