Barnes v. York
| Decision Date | 12 August 1975 |
| Docket Number | No. 36139,36139 |
| Citation | 526 S.W.2d 404 |
| Parties | Elaine Wahlberg BARNES, Respondent-Plaintiff, v. Jerry Lee YORK and Diana J. York, Appellants-Defendants. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Rendlen & Rendlen, Hannibal, for appellants-defendants.
J. Wm. Holliday, Kahoka, for respondent-plaintiff.
Defendants appeal from the summary judgment entered against them on a promissory note. Judgment was in the sum of $2,099.94, interest in the sum of $1,902.86, and attorney fees of $490.00.
Plaintiff's petition alleged that defendants executed their promissory note to plaintiff in the sum of $3,306.00; that the note was given for the purchase of a Pontiac automobile; that 4 payments of $100.00 had been made; that there was due and owing $2,906.00 with interest at the rate of 7% per annum. Attached to the petition there are two versions of the note on printed forms which show 'Fred Barnes-Asher's Implement' as payee. On one of the notes Fred Barnes-Asher's Implement has been lined out and plaintiff's name written in its place. On the second note only Asher's Implement has been stricken and plaintiff's name inserted.
Only defendant Jerry York filed an answer. He admitted that he had executed a note as described which was payable to Fred Barnes and denied that plaintiff was the lawful holder and alleged that the note had been altered subsequent to signing. By way of further affirmative defense the defendant alleged payment.
Defendant, Jerry York, by his attorney, filed a motion for summary judgment to which one William O. Green certified under oath the facts stated in the motion were true and correct to his best knowledge and belief. The motion alleged payment and release of the lien upon the automobile. A reply affidavit executed by plaintiff's attorney upon personal knowledge stated that the signature on the release of lien purporting to be that of Elaine Wahlberg was not her true signature and that the books of accounts kept by Fred Barnes, co-owner of the note, contained no evidence that payment had been made on the note. This motion for summary judgment was overruled and the cause was set for trial. Prior to the trial setting the attorney for Jerry York withdrew.
Subsequently a motion for summary judgment was filed by the plaintiff, supported by affidavit of J. William Holliday, plaintiff's attorney of record reading as follows:
'AFFIDAVIT FOR SUMMARY JUDGMENT FOR PLAINTIFF
J. William Holliday, being duly sworn, deposes and says:
1. That he is the attorney for Plaintiff in the above-entitled action.
2. That this action is brought to recover from a note which is described in the petition filed in said case.
3. That Defendants above-named have served their answer to Plaintiff's complaint.
4. That a copy of said promissory note is attached to the original petition filed in said case.
5. That the rate of interest on the original note is not apparent on the face of the note; that the Revised Statutes of Missouri provide for interest at the rate of 6% per annum on obligations that do not provide for interest.
6. That the original note is now in possession of Plaintiff and bears the signature of Defendant Jerry York as maker.
7. That deponent believes that Defendant has absolutely no defense to the cause of action set forth in the complaint. By his answer, Defendant admits the execution and delivery of said note; that although Defendant denies that Plaintiff is the holder in due course of said note by petition, that Defendant has admitted that Plaintiff is the holder in due course by his Motion for Summary Judgment filed in this case.
8. That the said J. William Holliday has often made demand for payment on behalf of Plaintiff, and that Defendant does not dispute that demand for payment has been duly made.
9. That there is absolutely no defense to this action and deponent believes that the answer interposed herein and the subsequent pleadings filed herein by Defendant were imposed merely for the purposes of delay and harassment.'
Neither defendant filed a counter affidavit.
Plaintiff served notice on the defendant's former attorney of the setting of the motion for summary judgment for February 5, 1974 and on that date summary judgment was entered by the court against both defendants.
It has been well said most recently that Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974).
In determining whether or not there was a genuine issue as to any material fact the court is required to consider all of the pleadings, all depositions, all admissions on file, together with all affidavits filed by the parties. Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., 388 S.W.2d 495, 500 (Mo.App.1965). Before we review the file for those matters which the court must consider, we feel it appropriate to spotlight that portion of Rule 74.04(e) reading as follows:
'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . .'
Setting plaintiff's affidavit against the rule it does not appear that her attorney had personal knowledge of any of the matters set forth in the petition or that he would be competent to testify as a witness on behalf of plaintiff with respect to any of the matters contained in the petition and affidavit.
The only allegation respecting the defendant's defense of payment is the...
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...than his conclusion that Shelter was acting in good faith. The affidavit is very much like the affidavit considered in Barnes v. York, 526 S.W.2d 404 (Mo.App.1975), wherein the plaintiff's attorney alleged "that there was absolutely no defense to [plaintiff's] action." Our colleagues at St.......
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Bethke v. Bethke, 48002
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Mitchell v. Commercial Standard Ins. Co., 38734
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...complete and binding on the parties. Steel contends this affidavit states legal conclusions, not facts. We agree. See Barnes v. York,, 526 S.W.2d 404, 406 (Mo.App.1975). The third affidavit was filed the day after Steel's summary judgment hearing. Therefore, it shall not be considered with ......