American State Bank v. Leaver

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

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.

Levinson, Bryant & Enabnit, Mason City, for appellant.

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 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 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.'

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 237 and 238, R.C.P., were prescribed to implement this right and prescribe or approve a procedure to be followed. However, it seems quite clear the intention of the rule is that no such judgment should be granted if the defense affidavit shows a substantial issue of fact exists and the matter is properly brought to the court's attention within the time prescribed.

II. Defendant's resistance to a motion for summary judgment must be timely filed and be supported by sworn statements of a person having knowledge of facts which are sufficient to sustain a valid defense to the action. The important factor to be shown, of course, is that the fact issue be such that, if decided in defendant's favor, it would be a good defense to the action. Eaton v. Downey, supra; Bjornsen Construction Co. v. J. A. Whitmer & Sons, supra; Petit v. Ervin Clark Construction, Inc., 243 Iowa 118, 49 N.W.2d 508; Credit Industrial Co. v. Happel, Inc., 252 Iowa 213, 106 N.W.2d 667. Of course, just any irrelevant or immaterial factual issue would not suffice, and could be rejected by the court or be stricken on motion. See article entitled 'Trial and Judgment' by Alan Loth, 29 Iowa Law Review, 35, 44, and an article by Charles W. Joiner entitled 'Determination of Controversies Without a Factual Trial,' 32 Iowa Law Review 417, 426.

III. The sufficiency of a defense, as revealed by the sworn factual statements or the affidavits provided in rule 238, R.C.P., is tested by the rules of pleading. Bjornsen Construction Co. v. J. A. Whitmer & Sons, supra; Eaton v. Downey, supra. As pointed out therein, a sufficient affidavit may consist of ultimate or evidentiary facts, and when so stated the affiant has the right to also state his conclusion on those facts.

In the case at bar Division II of defendant's Answer alleged under oath:

'Par. 1. That the defendant in May, 1965, sign as an accommodation a document similar to Exhibit 'A' attached to plaintiff's petition at the request of the American State Bank and Michael J. Thompson and at that time the representation was made by the American State Bank and the said Michael J. Thompson that a loan was being made to him which was fully secured by a chattel mortgage and that defendant further alleges that the plaintiff has not protected the defendant as accommodation maker of said instrument with respect to the security and that the said security was not repossessed until considerable time had past after default by the said Michael J. Thompson on the obligation and that the security was allowed to depreciate without being applied to the obligation and when ultimately it was sold and applied to the obligation full value was not received for it.

'Par. 2. That the plaintiff extended time for payment of the said obligation by the said Michael J. Thompson without first obtaining the consent of the defendant and thereby had worked a forfeiture of their right to the defendant as surety or accommodation maker with respect to the obligation.'

Defendant's verification to his Answer stated: 'I, Theodore H. Leaver, Jr., being first duly sworn on oath depose and state that I am the defendant named in the foregoing cause of action; that I have read the Answer, know the contents thereof and that the statements and allegations therein contained are true as I verily believe.'

Although appellee contends this statement of facts does not meet the above requirements, we must disagree.

It is not clear from the cases we have examined...