American State Bank v. Leaver, No. 52609

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LARSON
• Citation: 153 N.W.2d 348,261 Iowa 124
• Decision Date: 17 October 1967
• Docket Number: No. 52609
• Parties: AMERICAN STATE BANK, Appellee, v. Theodore H. LEAVER, Jr., Appellant.

Page 348

153 N.W.2d 348 261 Iowa 124 AMERICAN STATE BANK, Appellee,
v.
Theodore H. LEAVER, Jr., Appellant. No. 52609. Supreme Court of Iowa. Oct. 17, 1967.

[261 Iowa 125] Levinson, Bryant & Enabnit, Mason City, for appellant.

Page 349

William Pappas, Mason City, for appellee.

LARSON, Justice.

This appeal from a district court ruling sustaining plaintiff's motion for summary judgment in an action to recover from defendant, as a cosigner or accommodation maker of a promissory note, involves the requirements and interpretation of rules 237 and 238, Rules of Civil Procedure. Plaintiff contends that rule 238 required a literal interpretation and that the papers filed in resistance to the motion, showing facts which the court deems sufficient to permit him to defend, must be in affidavit form and must be filed with the resistance. We cannot agree.

From the record it appears one Michael J. Thompson executed a note to plaintiff bank on May 14, 1965, in the sum of $2,248.75, to secure the payment of a loan for the purchase of an automobile, and defendant signed the note as a comaker. After default, plaintiff by petition brought suit against defendant on the note and, after appearance by defendant, filed its motion for summary judgment. Thereafter, within ten days defendant filed his verified answer in two divisions, the first amounting to a general denial and the second raising affirmative defenses. Simultaneously, defendant filed a resistance to plaintiff's motion which alleged that he had a good [261 Iowa 126] defense to plaintiff's claim 'as evidenced by Division II of defendant's Answer filed herein, which Answer is verified by the defendant.'

Appellant asserts that the trial court erred in sustaining plaintiff's motion for summary judgment without giving consideration to defendant's resistance filed simultaneously with defendant's verified Answer containing affirmatice defenses, and which verified Answer was referred to in the resistance; that the trial court erred in granting judgment based upon plaintiff's affidavit which failed to controvert the affirmative defenses raised in defendant's verified Answer, and that it erroneously disregarded the pleadings wherein defendant's verified Answer contained affirmative defenses which raised substantial issues of fact, there being no reply on file controverting those affirmative defenses. Only the first assignment need be considered herein.

The trial court, in a written ruling, held that rule 238, R.C.P., required that a sworn affidavit be attached to defendant's resistance, which affidavit stated issuable facts which would constitute a good defense to the action and was executed by a person having knowledge thereof, and that defendant failed to comply with those specific requirements of the rule. It referred to our recent case of Eaton v. Downey, 254 Iowa 573, 578, 118 N.W.2d 583, and others, as well as to Cook, Iowa Rules of Civil Procedure, Vol. 2, pages 695 and 696.

Both parties cite and rely upon Eaton v. Downey and statements in Cook. Both parties cite cases from foreign jurisdictions, which in most instances are in accord with our holdings or are clearly distinguishable. Although we are respectful of the reasoning in cases from other jurisdictions, it is our responsibility to decide the meaning and requirements of rules 237 and 238 of the Iowa Rules of Civil Procedure.

Rule 238 provides: 'Plaintiff making a claim described in rule 237 may file a motion for summary judgment thereon at any time after defendant appears, before or after answer. * * * Judgment shall be entered as prayed in the motion unless within ten days after it is filed, or such other time as the [261 Iowa 127] court may, for good cause, allow, the defendant resists it with affidavits showing facts which the court deems sufficient to permit him to defend. Hearing on the motion, if thus resisted, shall be as provided in rule 117. The court may, on plaintiff's motion, strike any affidavits filed by defendant which it finds insufficient, frivolous or made only for delay.'

Page 350

I. It has often been said that the purpose of summary judgments and the affidavits connected therewith is to enable a party with a just cause of action to obtain judgment promptly and without delay and expense of trial, where there is no substantial or relevant issue to try. Bjornsen Construction Co. v. J. A. Whitmer & Sons, 254 Iowa 888, 892, 119 N.W.2d 801; Eaton v. Downey, supra; Cook, Iowa Rules of Civil Procedure, Vol. 2, page 695. Rules...