Mortimer Singer and Bernice B. Singer v. Theodore A. Rehm

Tenth Circuit

Mortimer Singer and Bernice B. Singer v. Theodore A. Rehm

334 F.2d 240, 1964 U.S. App. LEXIS 4716

CourtCourt of Appeals for the Tenth Circuit

DecidedJuly 15, 1964

Docket7459

StatusPublished

Cited by3 cases

This text of 334 F.2d 240 (Mortimer Singer and Bernice B. Singer v. Theodore A. Rehm) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mortimer Singer and Bernice B. Singer v. Theodore A. Rehm, 334 F.2d 240, 1964 U.S. App. LEXIS 4716 (10th Cir. 1964).

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Opinion

PER CURIAM.

This appeal is taken from a judgment summarily entered by the District Court for the Northern District of Oklahoma in favor of the plaintiff-appellee and against the defendants-appellants in the-sum of $15,000 plus interest and attorneys’ fees. The judgment is premised upon plaintiff’s payment, as guarantor and accommodation maker, of a promissory note executed by defendants and payable to a Scottsdale, Arizona, bank. The fact of such payment is not disputed but defendants contend that factual disputes do exist which affect liability and thus render the cause incapable of summary disposition. We hold the appellants’ contentions to have merit.

It would serve no purpose to detail the claims and counterclaims made by the parties through their pleadings, stipulations and offers of proof. It is sufficient to state that the issues were established and stated in a pre-trial order and are such as to require evidence in their proper adjudication. The trial court’s summary disposition of the case, made sua sponte and when both parties had appeared with their witnesses and ready for trial, was ill-advised for such disposition is inappropriate unless it can be said with certainty that no genuine issue of fact survives the pre-trial proceedings, McCollar v. Euler, 10 Cir., 286 F.2d 327, and the case is so free of doubt as to render a formal trial useless. Atkinson v. Jory, 10 Cir., 292 F.2d 169.

The judgment is vacated and the case is remanded for further proceedings.

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PER CURIAM.

This appeal is taken from a judgment summarily entered by the District Court for the Northern District of Oklahoma in favor of the plaintiff-appellee and against the defendants-appellants in the-sum of $15,000 plus interest and attorneys’ fees. The judgment is premised upon plaintiff’s payment, as guarantor and accommodation maker, of a promissory note executed by defendants and payable to a Scottsdale, Arizona, bank. The fact of such payment is not disputed but defendants contend that factual disputes do exist which affect liability and thus render the cause incapable of summary disposition. We hold the appellants’ contentions to have merit.

It would serve no purpose to detail the claims and counterclaims made by the parties through their pleadings, stipulations and offers of proof. It is sufficient to state that the issues were established and stated in a pre-trial order and are such as to require evidence in their proper adjudication. The trial court’s summary disposition of the case, made sua sponte and when both parties had appeared with their witnesses and ready for trial, was ill-advised for such disposition is inappropriate unless it can be said with certainty that no genuine issue of fact survives the pre-trial proceedings, McCollar v. Euler, 10 Cir., 286 F.2d 327, and the case is so free of doubt as to render a formal trial useless. Atkinson v. Jory, 10 Cir., 292 F.2d 169.

The judgment is vacated and the case is remanded for further proceedings.

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334 F.2d 240, 1964 U.S. App. LEXIS 4716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mortimer-singer-and-bernice-b-singer-v-theodore-a-rehm-ca10-1964.

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