Williams v. Kolb

145 F.2d 344 (1944)

WILLIAMS
v.
KOLB et al.

No. 8703.

United States Court of Appeals District of Columbia.

Argued October 17, 1944. Decided November 6, 1944.

Mr. Maurice R. Weeks, of Washington, D. C., with whom Mr. Thurman L. Dodson, of Washington, D. C., was on the brief, for appellant.

Mr. George C. Gertman, of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and MILLER and ARNOLD, Associate Justices.

PER CURIAM.

This is an appeal from an order granting a summary judgment in an action to set aside a sale under a deed of trust to secure a promissory note executed by the plaintiff. The sole question is whether the trustee under the deed of trust had sufficient interest in the promissory note secured by that deed to invalidate the sale under our rule in Spruill v. Ballard.^[1] Defendants filed sworn pleadings setting out in great detail facts showing that the holder of the note at the time of the sale was a purchaser and the trustee had no interest therein. Plaintiff filed no counter affidavits. He relied upon general allegations in his complaint that the holder of the note was "in fact and truth the agent, tool and straw" of the trustee. Such general allegations were not sufficient on a motion for summary judgment to raise an issue of fact against the detailed statements sworn to by the defendants. They do not come within Rule 56(e)^[2] which provides that on a motion for summary judgment "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein."

There was no genuine issue of fact disclosed by the record^[3] in this case and the judgment of the court will be affirmed.

NOTES

[1] 1932, 61 App.D.C. 112, 58 F.2d 517.

[2] Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

[3] Fletcher v. Krise, 1941, 73 App.D.C. 266, 120 F.2d 809.