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

334 F.2d 240

Mortimer SINGER and Bernice B. Singer, Appellants,
v.
Theodore A. REHM, Appellee.

No. 7459.

United States Court of Appeals Tenth Circuit.

July 15, 1964.

Charles A. Whitebook of Whitebook & Knox, Tulsa, Okl., for appellants.

Frederick S. Nelson, Tulsa, Okl., for appellee.

Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

PER CURIAM.

1

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.

2

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.

3

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