Board of Public Instruction for County of Hernando v. Meredith

• Decision Date: 15 May 1941
• Docket Number: No. 9803.,9803.
• Parties: BOARD OF PUBLIC INSTRUCTION FOR COUNTY OF HERNANDO, STATE OF FLORIDA, v. MEREDITH et al.
• Court: U.S. Court of Appeals — Fifth Circuit

119 F.2d 712 (1941)

BOARD OF PUBLIC INSTRUCTION FOR COUNTY OF HERNANDO, STATE OF FLORIDA, v. MEREDITH et al.

No. 9803.

Circuit Court of Appeals, Fifth Circuit.

May 15, 1941.

Morris E. White and Calvin Johnson, both of Tampa, Fla., for appellant.

Robert J. Pleus, of Orlando, Fla., for appellees.

Before FOSTER, SIBLEY, and McCORD, Circuit Judges.

FOSTER, Circuit Judge.

Appellee brought this suit to recover on interest coupons clipped from bonds issued by the Board of Public Instruction for the county of Hernando, Florida, on June 1, 1925. An adverse decision holding the bonds and coupons invalid was reversed by us, 5 Cir., 112 F.2d 914. After the mandate went down, plaintiffs filed, under the provisions of Rule 36, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, a request for admission by defendant that the coupons were genuine and attached to and delivered with the bonds bearing corresponding numbers, as indicated on the coupons. By answer, not verified, defendant, in substance, replied that it could not admit or deny this statement because it was not possible to determine from an examination of the coupons whether they were genuine or not, since the coupons had been detached from the bonds and did not bear upon their face any means of identification. Plaintiff then gave notice of a motion for summary judgment on the pleadings, the request for admission and supporting affidavits, under the provisions of Rule 56, Rules of Civil Procedure.

On the hearing, in support of the motion, plaintiffs filed affidavits which showed that the bonds with the coupons attached had been deposited with plaintiffs as members of a bondholders' committee; that plaintiffs had the legal title to the securities as trustees of an express trust created by a bondholders' agreement and were entitled to sue thereon; that J. Bowerman had personally clipped the interest coupons from the respective bonds for the purpose of making the coupons available for the institution of the suit; and that L. K. Stephens was competent to do so and had personally computed the amounts due upon the coupons involved in the suit, both in principal and interest, which aggregated $29,624.87. Defendant filed no opposing affidavits or evidence of any kind to offset the prima facie showing made by the just described affidavits. Summary judgment was granted in the amount of $29,624.87. This appeal followed.

Appellant contends that ex parte affidavits may not be received as proof of the material facts in issue in any suit and Rule 56 does not imply that this may be done; that a genuine issue of material fact was presented by the pleadings as the signatures on the coupons were printed or lithographed thereon and were not made...