157 F.2d 582 (8th Cir. 1946), 13387, Parmelee v. Chicago Eye Shield Co.

Docket Nº:13387.
Citation:157 F.2d 582
Case Date:October 28, 1946
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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157 F.2d 582 (8th Cir. 1946)




No. 13387.

United States Court of Appeals, Eighth Circuit.

October 28, 1946

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Alpha N. Brown, of Kansas City, Mo., for appellant.

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Albert Thomson, of Kansas City, Mo. (Paul R. Stinson, of Kansas City, Mo., Winston, Strawn & Shaw, of Chicago, Ill., and Stinson, Mag, Thomson, McEvers & Fizzell, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment entered on motion of the plaintiff for summary judgment. The parties will be referred to as they were designated in the trial court. The plaintiff sued the defendant on an account for goods sold and delivered between February 1, 1945, and October 1, 1945. The balance alleged to be due was $6, 639.10. Defendant answered, admitting that plaintiff had sold and delivered to it goods of the value of $6625.50, and that the items attached to plaintiff's complaint were correct except for an admitted credit of $13.61. It further alleged that:

'Defendant denies that defendant is indebted to the plaintiff in any amount whatsoever and alleges and avers that by reason of the claims hereinafter set forth and alleged the defendant is entitled to have and recover of the plaintiff an amount far in excess of the plaintiff's demand; and that by reason of the matters and things hereinafter set forth defendant is not indebted to plaintiff and that by reason of the following matters, defendant's cross-claims and counter-claims should be set off against any amount claimed to be due plaintiff and the plaintiff is not entitled to recover judgment against defendant for any amount.'

Defendant pleaded six counter-claims, the nature of which we shall hereinafter consider.

Plaintiff moved for summary judgment in the amount of $5, 109.90, and in its motion recited that:

'This motion is filed under Rule 56 of the Rules of Civil Procedure (28 U.S.C.A.following section 723c) * * * and is based upon the wording of Rule 56, as interpreted in the case of Seagram-Distillers Corporation v. Manos, D.C., 25 F.Supp. 233 * * * .'

It also recited that its complaint was filed on October 22, 1945, and that defendant on November 8, 1945, obtained an order enlarging the time for serving answer for a period of thirty days, and that on December 12, 1945, it obtained a further order enlarging the time until December 17, 1945, at which time it served its answer admitting that plaintiff had sold and delivered to defendant goods of the value of $6625.50, for which payment had not been made. It was recited in this motion that defendant in its answer set up as a counter-claim that plaintiff owed defendant the sum of $1515.60. This motion was filed January 2, 1946, and on January 7, 1946, it filed its reply denying liability on any of the counter-claims except the first one. By stipulation and admission on oral argument it was agreed that all items of plaintiff's account represented 'purchases made by defendant from plaintiff pursuant to the distributorship agreement and arrangement set forth and described in the second, third, fourth, fifth, and sixth counter-claims of defendant on file herein.'

On March 25, 1946, the trial court granted plaintiff's motion and entered a judgment in its favor for $5, 109.90, being the amount of its claim less the amount claimed by defendant in its first counter-claim. The court ordered that the remaining counter-claims, second to sixth, inclusive, be tried together in a separate trial. The court later entered an order providing that defendant might file a bond in the sum of $6, 000, conditioned for the satisfaction of the judgment pending final determination of the remaining counter-claims, in which event the enforcement of the judgment should be stayed. From the judgment as entered defendant prosecutes this appeal, urging error in the entry of the summary judgment.

While plaintiff's motion for summary judgment was based entirely upon Rule 56, the judgment entered is defended as warranted by Rule 54(b), as well as by Rule 56. The summary judgment procedure

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prescribed in Rule 56 is designed for the prompt disposition of the action where there is no genuine issue regarding any material facts, thus avoiding a useless trial to prove facts which are not really disputed. Altman v. Curtis-Wright Corp., 2 Cir., 124 F.2d 177; Miller v. Miller, 74 App.D.C. 216, 122 F.2d 209. The rule contemplates an inquiry...

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