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

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 counterclaim and the answer thereto. Under these circumstances, appellees were 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.

(concurring specially) .

I concur in reversal and remand. Upon remand a trial should be held on the merits. The record-on-appeal does not reveal a demand for jury trial but neither does it affirmatively reveal that no such demand was made. Whether the case is tried before the court or by jury will, of course, depend upon whether or not a timely demand for jury trial was made.