Stonestreet v. Compton Motors, Inc.

• Citation: 197 S.E.2d 579,18 N.C.App. 527
• Decision Date: 27 June 1973
• Docket Number: No. 7319DC415,CHRYSLER-PLYMOUT,INC,7319DC415
• Court: North Carolina Court of Appeals
• Parties: A. L. STONESTREET, Plaintiff, v. COMPTON MOTORS, INC., Defendant, v. PETHEL, Defendant and Third Party Plaintiff, v. MOORESVILLE, et al., Third Party Defendants.

Page 579

197 S.E.2d 579

18 N.C.App. 527

A. L. STONESTREET, Plaintiff, v. COMPTON MOTORS, INC., Defendant, v. PETHEL CHRYSLER-PLYMOUTH, INC., Defendant and Third Party Plaintiff, v. MOORESVILLE CHRYSLER-PLYMOUTH, INC., et al., Third Party Defendants.

No. 7319DC415.

Court of Appeals of North Carolina.

June 27, 1973.

Hartsell, Hartsell & Mills by William L. Mills, Jr., and Fletcher L. Hartsell, Jr., Concord, for plaintiff appellee.

Collier, Harris, Homesley & Jones by Walter H. Jones, Jr., Mooresville, for defendant appellant (Pethel Chrysler-Plymouth, Inc.).

BRITT, Judge.

Defendant Pethel contends the court erred in its findings of facts and conclusions of law that the note and chattel mortgage are valid and that plaintiff is entitled to possession of the personal property in question, and entering judgment awarding plaintiff possession of the property. The contention has merit.

As to Pethel, we think the court went far beyond the purview of summary judgment. It appears from the judgment that the court treated the hearing as a nonjury trial of the case on the merits and considered it the court's function to find facts on conflicting evidence, make conclusions of law and enter final judgment between the parties.

Since the new Rules of Civil Procedure were adopted by the 1967 General Assembly and became effective on 1 January 1970, the Supreme Court and this court have emphasized in numerous opinions that upon a motion for summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. The cases include Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971); Moore v. Bryson, 11 N.C.App. 260, 181 S.E.2d 113 (1971); Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101 (1970). It is not the purpose of the summary judgment procedure to resolve disputed material issues of fact. Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147 (1971). Summary judgment is proper only when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. G.S. § 1A--1, Rule 56; Lee v. Shor, Supra.

At the hearing in the case at hand, Pethel showed that while it obtained the personal property in question from parties associated with Compton, there are genuine questions as to the corporate life of Compton affecting the validity of the note and chattel mortgage. Plaintiff testified that in about April of 1965, he and several others 'purchased' Compton but that no stock was ever transferred; that he was on the board of directors and F. E. Cox was elected president with plaintiff elected vice-president; that when they could not get the Chrysler-Plymouth franchise, Compton ceased operations; that the note and chattel mortgage were executed for value received by duly elected and authorized officers of Compton. Plaintiff's testimony was contradicted in several affidavits including that of F. E. Cox (who plaintiff alleges executed the note and chattel mortgage on behalf of Compton) who stated: During the months of June and July of 1965, he, together with Hoyle A. Parker ...