Stonestreet v. Compton Motors, Inc.

197 S.E.2d 579 (1973) 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 and plaintiff, attempted to purchase Compton but the purchase was never consummated; that it was agreed that in the event the transaction was consummated, he would be president, plaintiff would be vice-president and Buford Compton would be secretary-treasurer; that the money advanced by plaintiff to be used in purchasing Compton was withdrawn by plaintiff; that he (Cox) was never an officer of Compton and did not sign the promissory note in question.

We hold that while Compton filed no answer to plaintiff's complaint, Pethel has the right to challenge the validity of the note and chattel mortgage. Pethel showed that there is a genuine issue as to a material fact, therefore, the court erred in entering judgment in favor of plaintiff against Pethel.

We come now to Pethel's contention that the court erred in not allowing its motion for summary judgment, particularly on its plea of the three years statute of limitations. We have held that ordinarily the denial of a motion for summary judgment does not affect a substantial right so that an appeal may be taken. Motyka v. Nappier, 9 N.C.App. 579, 176 S.E.2d 858 (1970). We do not feel impelled to consider the court's failure to allow Pethel's motion. We think the ends of justice will be met at this point in the litigation if the judgment appealed from is vacated as to Pethel and the cause remanded for trial on the merits. It is so ordered.

We deem it appropriate to comment on a deficiency in the record on appeal. The record reveals that on 15 December 1970 default was entered against Pethel by the Clerk of the Superior Court of Cabarrus County. Subsequent proceedings indicate that the entry was ignored by the parties, and their attorneys stated at the time of oral arguments in this court that they had agreed that "no point would be made" because of the entry. We do not look with favor on oral agreements affecting written portions of the record.

Judgment vacated.

MORRIS and PARKER, JJ., concur.