Garrett Biblical Institute v. American University, 9458.

Citation82 US App. DC 265,163 F.2d 265
Decision Date30 June 1947
Docket NumberNo. 9458.,9458.
PartiesGARRETT BIBLICAL INSTITUTE v. AMERICAN UNIVERSITY.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Messrs. Archie K. Shipe and Walter M. Bastian, both of Washington, D. C., for appellant.

Messrs. Edward F. Colladay and David Clement Colladay, both of Washington, D. C., with whom Mr. Harry F. Lerch, of Washington, D. C., was on the brief, for appellee.

Before STEPHENS, CLARK, and WILBUR K. MILLER, Associate Justices.

CLARK, Associate Justice.

This case was heard and disposed of below on motions for summary judgment filed by both parties. The case involves the administration of certain funds of The American University used to finance the Gustavus F. Swift Fellowship. The annual incumbent of the fellowship is a graduate of the appellant institution, The Garrett Biblical Institute. The actual controversy before us arose when the Board of Trustees of the University, in 1942, adopted a resolution, the effect of which was to require that in the future the benefits of the Swift Fellowship must be applied to study at the American University, only, rather than be available for study elsewhere which had been the practice for over twenty-five years. Considerable opposition to this change was registered by appellant. After protracted correspondence and negotiation between the parties and their counsel, the appellee University filed a complaint asking the court to adjudge: (1) That the University at all times has had and continues to have, within the limits of the special Acts of Congress under which it is incorporated, full right, power, and authority to administer its invested capital funds and the income therefrom, with full right, power, and authority to determine and effect, and from time to time to vary or change, in part or in whole, the application and disposition of all of its said funds, capital and income, as it, in its discretion, may see fit, subject only to any restrictions validly imposed by a donor, or bindingly undertaken by the University, or vested rights of others with respect thereto; (2) that that portion of its funds immediately involved and used to finance the Swift Fellowship is a part of its said funds and is not and never has been subject to any restrictions or any vested rights of others than the University with respect to administration, application, or disposition thereof; and (3) that the action embodied in the resolution adopted by its Board of Trustees April 9, 1942, changing the terms of award of the Swift Fellowship was and continues to be in all respects valid and does not infringe upon any right of Garrett Biblical Institute.

Appellant filed an answer and counterclaim seeking declaratory relief in its favor. Thereafter, both parties filed motions for summary judgment and on these motions the lower court ordered judgment in favor of appellee on its motion while denying appellant's motion. This appeal followed.

The conflict arising during the course of oral argument as to whether appellant's motion for summary judgment was restricted to its counterclaim or whether it applied to all of the pleadings is of no moment, since even assuming that both motions were directed toward the same complaint and responsive pleadings, "It does not follow that, merely because each side moves for a summary judgment, there is no issue of material fact. For, although a defendant may, on his own motion, assert that, accepting his legal theory, the facts are undisputed, he may be able and should always be allowed to show that, if plaintiff's legal theory be adopted, a genuine dispute as to a material fact exists." Walling v. Richmond Screw Anchor Co., 2 Cir., 154 F.2d 780, 784, certiorari denied 328 U. S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640, followed by this court in Krug v. Santa Fe Pacific R. R. Co., 81 U.S.App.D.C. 288, 158 F.2d 317. Appellant asserts that since the University failed to reply to appellant's counterclaim appellant was entitled to have...

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    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 3, 1955
    ...2 Cir., 1949, 178 F.2d 872; Krug v. Santa Fe Pac. R. Co., 1946, 81 U.S. App.D.C. 288, 158 F.2d 317; Garrett Biblical Institute v. American University, 1947, 82 U.S.App.D.C. 263, 163 F.2d 265. 9 All differences soever which shall, consequent upon the detouring of trains, arise under this agr......
  • Subin v. Goldsmith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 3, 1955
    ...the equivalent of his opposition to the entry of a summary judgment, it would be superfluous. So in Garrett Biblical Institute v. American University, 82 U.S.App.D.C. 263, 163 F.2d 265, 267, the court, reversing a summary judgment for plaintiff-appellee, said: "And although appellant has ma......
  • Brug v. National Coalition for Homeless, CIV.A. 98-504 SSH.
    • United States
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    • March 19, 1999
    ...was paid by the NCH out of HUD grant money. Accordingly, the Court disregards this statement. See Garrett Biblical Institute v. American University, 163 F.2d 265, 266 (D.C.Cir.1947); United States v. BCCI Holdings, S.A., 977 F.Supp. 1, 6 (D.D.C. 1997) ("[L]egal conclusions `cloaked' as fact......
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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
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    ...Co., 2 Cir., 154 F.2d 780, 784; Krug v. Santa Fe R. Co., 81 U.S.App.D.C. 288, 158 F.2d 317, 319; Garrett Biblical Institute v. American University, 82 U.S.App.D.C. 263, 163 F.2d 265, 266. 4 See Doehler Metal Furniture Co. v. U. S., 2 Cir., 149 F.2d 130, Pre-trial conferences, properly used,......
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