Woods v. Allied Concord Financial Corporation (Del.)
| Decision Date | 20 April 1967 |
| Docket Number | No. 23198.,23198. |
| Parties | L. D. WOODS and Evelina K. Woods, Appellants, v. ALLIED CONCORD FINANCIAL CORPORATION (DELAWARE), Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carl K. Nelson, Jr., Nelson & Nelson, Dublin, Ga., for appellants.
Robert C. Norman, Wyck A. Knox, Jr., Augusta, Ga., for appellee, Hull, Towill & Norman, Augusta, Ga., of counsel.
Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.
In this diversity suit the district judge granted summary judgment for $60,526.71, plus interest and attorney's fees, in a matter growing out of the sale to plaintiff of a series of mortgage notes executed by various parties and endorsed, with recourse, by defendant L. D. Woods as partner in Woods Loan and Realty Company. The suit also alleged that Mrs. Evelina K. Woods was a member of the partnership with her husband, L. D. Woods, and on the basis of the affidavits, depositions and exhibits, the trial judge granted judgment against both Mr. and Mrs. Woods as partners.
Appellant, Mrs. Woods, contends that there is an issue of fact as to whether there was a partnership in existence between her and her husband. She also avers that the trial court erred in admitting the affidavit of E. S. Egge, Sr., representative of plaintiff (accompanied by supporting exhibits and statements), purporting to show that plaintiff relied on Mrs. Woods holding herself out as a partner as a consideration of the present transaction. The Egge affidavit was filed on the day of the trial of the motion for summary judgment and appellant urges that under Rule 56(c) of the Federal Rules of Civil Procedure it was necessary that it be served with the motion at least ten days prior to the time fixed for the hearing. However, appellant ignores the provisions of Rule 6(d) which should be read in conjunction with Rule 56(c) and which authorizes the court to permit opposing affidavits to be served at some other time. 6 Moore's Federal Practice § 2098. Also, under Rule 6(b), a rule of general application, the court for cause shown is given wide discretion to enlarge the time for doing an act required or allowed under the rules to be done within a specified time. 1 Barron and Holtzoff (Wright ed. 1961) Federal Practice and Procedure § 215. The Egge affidavit primarily identified attached original letters and joint financial statements of L. D. Woods and Evelina K. Woods, prepared and forwarded by defendants to Mr. Egge as assistant vice president of plaintiff corporation. Numerous security deeds which were assigned by the partnership by L. D. Woods as partner were included in the affidavit by reference. In the affidavit Mr. Egge, who had actively handled these transactions for his company, stated that plaintiff corporation relied upon the fact that both Mr. and Mrs. Woods were...
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Yonofsky v. Wernick, 64 Civ. 417.
...cited as C. Wright & A. Miller. 18 See pp. 1010-1011 supra. 19 See note 15 supra. 20 See, e. g., Woods v. Allied Concord Financial Corp., 373 F.2d 733, 734 (5th Cir. 1967); Hoffman v. Kennedy, 30 F.R.D. 50, 51 21 2 J. Moore ¶ 6.08; 4 C. Wright & A. Miller, § 1165, at 619-20. 22 It should be......
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