Peterson v. Valley Nat. Bank of Phoenix, 7067

• Decision Date: 24 January 1962
• Docket Number: No. 7067,7067
• Parties: T. Ed PETERSON, Jr. and Nada Peterson, his wife, and H. H. Robinson and Carolyn H. Robinson, his wife, copartners, doing business under the name and style of Peterson Robinson Cotton, Co., Appellants, v. The VALLEY NATIONAL BANK OF PHOENIX, a national banking association, Appellee.
• Court: Arizona Supreme Court

Page 317

368 P.2d 317

90 Ariz. 361

T. Ed PETERSON, Jr. and Nada Peterson, his wife, and H. H. Robinson and Carolyn H. Robinson, his wife, copartners, doing business under the name and style of Peterson Robinson Cotton, Co., Appellants, v. The VALLEY NATIONAL BANK OF PHOENIX, a national banking association, Appellee.

No. 7067.

Supreme Court of Arizona, In Banc.

Jan. 24, 1962.

Botsford, Turner & Roe, Scottsdale, for appellants.

Rawlins, Davis, Ellis, Burrus & Kiewit, Phoenix, for appellee.

BERNSTEIN, Chief Justice.

The sole question presented on this appeal is whether the trial court erred in granting the plaintiff's motion for summary judgment.

The Valley National Bank of Phoenix as plaintiff filed a complaint against T. Ed Peterson, Jr., et ux.; and H. H. Robinson et ux. as individuals and as a partnership on eleven separate promissory notes executed by the copartners. The defendants answered admitting the execution and delivery of the promissory notes but denying any amount due on the notes. The defendants alleged that the plaintiff received payment in full on all said notes in satisfaction thereon by taking possession of the assets pledged as securities for said notes and liquidating said assets for plaintiff's own use and benefit without notice to or demand upon the defendants. As affirmative defenses the defendants alleged: (1) that all the promissory notes were executed pursuant to a certain general pledge agreement entered by the parties in 1953 whereby the notes were secured by warehouse and other receipts representing cotton; that in exercising its power of sale under the general pledge agreement, the plaintiff acted in bad faith by not conducting the sales properly in violation of its trust obligation under the general pledge agreement; (2) that the plaintiff waived its right under the general pledge agreement allowing the pledgee to make an immediate sale without notice to the pledgor by permitting defendants to continue with the sale and handling of the cotton which was pledged.

The plaintiff, before defendant's answer was filed, moved for summary judgment against defendants based upon the pleadings, depositions, admissions and the affidavits on file in said action. The defendants filed their answer and controverting affidavit about two weeks later. Judgment was granted for the plaintiff on the complaint, and this appeal followed.

We are thus called upon to determine whether the trial court correctly entered summary judgment in favor of plaintiff. A motion for summary judgment should not be granted when there is a genuine issue of material fact and it is not a substitute for a trial. Springer v. Bank of Douglas, 82 Ariz. 329, 313 P.2d 399 (1957); Phoenix Feed & Seed Co. v. Adams, 78 Ariz. 292, 279 P.2d 447 (1955); Smotkin v. Peterson, 73 Ariz. 1, 236 P.2d 743 (1951); Sligh v. Watson, 69 Ariz. 373, 214 P.2d 123 (1950). Litigants are entitled to the right of trial where there is the slightest doubt as to the facts. Cress v. Switzer, 61 Ariz. 405, 150 P.2d 86 (1944). See also Doehler Metal Furniture Co., Inc. v. United States, 149 F.2d 130 (2d Cir., 1945).

'Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a...