Real Coal, Inc. v. Thompson Tractor Co., s. 78-529
| Court | Supreme Court of Alabama |
| Writing for the Court | BEATTY; TORBERT |
| Citation | 379 So.2d 1249 |
| Parties | REAL COAL, INC. v. THOMPSON TRACTOR COMPANY. Norman C. REID et al. v. THOMPSON TRACTOR COMPANY. |
| Docket Number | 78-559,Nos. 78-529,s. 78-529 |
| Decision Date | 25 January 1980 |
Page 1249
v.
THOMPSON TRACTOR COMPANY.
Norman C. REID et al.
v.
THOMPSON TRACTOR COMPANY.
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.
Page 1250
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...
To continue reading
Request your trial
-
Government Street Lumber Co., Inc. v. AmSouth Bank, N.A.
...himself to the provisions of the guaranty agreement. Williams v. Bank of Oxford, supra; see also Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980). Absent fraud in the inducement, an absolute guaranty will be enforced according to its terms. Medley v. SouthTrust Bank, supra......
-
Ex parte General Motors Corp.
...Lawson State, supra, cites Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala. 1980), and Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980), as cited by still other cases, for the proposition "[o]nce a motion for summary judgment has been made, the adverse party ordinaril......
-
Home Bank of Guntersville v. Perpetual Federal Sav. and Loan Ass'n
...material issue of fact does exist.' Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980); Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980). Id. at Wright v. Robinson, 468 So.2d 94, 97 (Ala.1985); see also Kemp Motor Sales, Inc. v. Lawrenz, 505 So.2d 377 (Ala.1987). W......
-
Lawson State Community College v. First Continental Leasing Corp.
...a material issue of fact does exist. Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980); Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980).' Id. at Wright v. Robinson, 468 So.2d 94, 97 (Ala.1985); Kemp Motor Sales, Inc. v. Lawrenz, 505 So.2d 377 (Ala.1987). B. The A......
-
Government Street Lumber Co., Inc. v. AmSouth Bank, N.A.
...himself to the provisions of the guaranty agreement. Williams v. Bank of Oxford, supra; see also Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980). Absent fraud in the inducement, an absolute guaranty will be enforced according to its terms. Medley v. SouthTrust Bank, supra......
-
Ex parte General Motors Corp.
...Lawson State, supra, cites Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala. 1980), and Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980), as cited by still other cases, for the proposition "[o]nce a motion for summary judgment has been made, the adverse party ordinaril......
-
Home Bank of Guntersville v. Perpetual Federal Sav. and Loan Ass'n
...material issue of fact does exist.' Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980); Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980). Id. at Wright v. Robinson, 468 So.2d 94, 97 (Ala.1985); see also Kemp Motor Sales, Inc. v. Lawrenz, 505 So.2d 377 (Ala.1987). W......
-
Lawson State Community College v. First Continental Leasing Corp.
...a material issue of fact does exist. Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980); Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980).' Id. at Wright v. Robinson, 468 So.2d 94, 97 (Ala.1985); Kemp Motor Sales, Inc. v. Lawrenz, 505 So.2d 377 (Ala.1987). B. The A......