Real Coal, Inc. v. Thompson Tractor Co., s. 78-529

• Citation: 379 So.2d 1249
• Decision Date: 25 January 1980
• Docket Number: 78-559,Nos. 78-529,s. 78-529
• Parties: REAL COAL, INC. v. THOMPSON TRACTOR COMPANY. Norman C. REID et al. v. THOMPSON TRACTOR COMPANY.
• Court: Alabama Supreme Court

Page 1249

379 So.2d 1249

REAL COAL, INC. v. THOMPSON TRACTOR COMPANY.

Norman C. REID et al. v. THOMPSON TRACTOR COMPANY.

Nos. 78-529, 78-559.

Supreme Court of Alabama.

Jan. 25, 1980.

Orrin R. Ford of Najjar & Najjar, Birmingham, for appellants Norman C. Reid and R & K Coal Co.

Carol J. Millican and Tommy E. Hill, Birmingham, for appellant Real Coal, Inc. John H. Morrow and Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellee.

BEATTY, Justice.

Appeals by the defendants from summary judgments for the plaintiff. We affirm.

The plaintiff, Thompson Tractor Company, filed its complaint to recover money allegedly due on open account and upon certain equipment rental agreements from the defendants Norman C. Reid, Real Coal, Inc., Southern States Coal, Inc., Poe Coal Company, and R & K Coal Company, a partnership. The count of the complaint against Reid was based upon his personal guaranties for the debts of two of the defendant companies. All of the defendants filed motions to dismiss. The motions of Reid and two of the companies, Poe and R & K, were overruled. While the remaining motions were pending, and before any answers were filed by the defendants, the plaintiff moved for summary judgment. In support of this motion the plaintiff filed an affidavit of one Dickson, plaintiff's vice-president for finance, and exhibits which Dickson, in his affidavit, vouched for as reflecting the sums owed by Southern States, Real, Poe, R & K, and Reid as guarantor or partner. These particular exhibits consisted of invoice dates, invoice numbers, and amounts. Additional exhibits, consisting of copies of guaranties executed by Reid for Southern States' and Real's debts to plaintiff were also attached. An affidavit of Reid in opposition to the motion for summary judgment was filed on the date on which the motion for summary judgment was heard.

Following a hearing on the motion the trial court granted partial summary judgment against Southern States Coal, Inc. (from which no appeal has been taken), against Real Coal, Inc., R & K Coal Company, and against Norman Reid. These judgments were made final under Rule 54(b), ARCP.

The defendants' essential point on their appeals questions the propriety of summary judgments.

To begin with, nothing in the language of Rule 56 restricts the grant of summary judgment before an answer is filed, which was the situation here. Rule 56(a) grants permission to move for summary judgment ". . . at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party . . .." No issue is made on the timeliness of the motion, and the record reflects that it was made more than thirty days after the action was filed. As subsection (c) discloses, the pertinent inquiry at any stage at which the motion is made is whether there is a genuine issue of material fact.

Consideration of the pleadings, the Dickson affidavit and the accompanying exhibits discloses that the plaintiff had established a Prima facie case against each of these defendants. Dickson himself verified the exhibits as accurately reflecting the sums owed: "I have personally reviewed the books and records of the company with respect to the obligations of the defendants to plaintiff and have caused the attached exhibits to be prepared to reflect the items which comprise each account." This Rule 56(e) was satisfied, in that the affidavit set forth facts "as would be admissible in evidence" and showed that Dickson was "competent to testify to the matters stated therein." Cf. Jordan v. Rice-Stix Dry Goods Co., 33 Ala.App. 190, 31 So.2d 372 (1947). Contrary to the defendants' insistence, the fact that the plaintiff did not proceed under Code of 1975, § 12-21-111 did not render the itemization inadmissible. That Code section merely creates a rule of evidence and does not preclude a claim on an account from being otherwise proved. Duck Brand Co. v. Douglass, 16 Ala.App. 437, 78 So. 635 (1918). That is to say, although the accounts stated may not have been self-proving under the statute cited, nevertheless on motion for summary judgment they could be considered together with Dickson's sworn statement to determine their admissibility. Polytinksy v. Stewart, 158 Ala. 179, 48 So. 395 (1909). And see Willingham v. Wesley Hardware Co., 227 Ala. 280, 149 So....