Howick v. Bank of Salt Lake

ELLETT, Justice:

The defendant, hereafter called the bank, appeals from a summary judgment in favor of Howick.

'"Hówifck’s ’¿ofporate client' had a certificate' of deposit in the amount of -$5,000 with the banlo which it had pledged for a loan. The corporate client obtained temporary possession of the certificate by telling the-bank it needed the certificate to show its auditor in. order to make up a prospectus for-stock sale purposes. Instead-of returning the certificate to the bank as promised, the corporate client assigned it to Howick in payment of attorney’s fees which it owed to him. The bank refused to honor the certificate when .Howick presented it for payment, and this action was commenced.to collect the amount due, together with -damages for failure to pay.

The return of pledged property by the pledgee to the pledgor for a temporary, limited, or special purpose does not divest the pledgee of his lien.¹

The bank claims that there was a material issue of fact existing which would prevent the granting of a summary judgment, to wit: That Howick knew of the existence of the pledge at the time the certificate was given to him by his client. Therefore, 'if such an issue can be found to exist from the record, a trial would be needed and the matter could not be determined by summary judgment.

-Howick,- filed an affidavit wherein he stated- that at the time the certificate was given to him, he had no knowledge of- the b'añk’s'-claim thereto.- The bank caused af-fkMvit's to be filed "wher'éín it was stated:

1. That the business records reflected that Howick had notice of the pledge.

2. ■ That Richard A. Roberts (the incor-porator and personal client of Howick) advised the' affiant that Howick was aware of the pledge to the bank at the time he got the assignment of the certificate.

Rule 56(e), U.R.C.P., provides:

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 to the matters stated therein.

The affidavits filed by the bank may or may not measure up to the requirements of the rule. However, no motion to strike them was made, and under the circumstances of this case these affidavits are sufficient to require proof as to knowledge of the assignment or lack thereof. Professor Moore ² states the law as follows:

An affidavit that does not measure up to the standards of 56(e) is subject to a motion to strike; and formal defects are waived in the absence of such a motion or other objection.

This is particularly true where the opposing affidavit of the plaintiff is self-serving and the testimony therein, if given at trial, could be disbelieved by the jury.³

The judgment is reversed and the case remanded to the trial court for such further proceedings in harmony with this opinion as are proper. Costs are awarded to appellant.

TUCKETT, HENRIOD, and CROCKETT, JJ., concur.

1 . 72 C.J.S. Pledges § 27 f.

2 . G Moore Fed.Pro. at page 2817.

3 . Fox v. Allstate Insurance Company, 22 Utah 2d 383, 453 P.2d 701 (1969).