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NATIONAL SUR. CORP. v. FIRST NAT. BANK IN INDIANA

July 16, 1952

NATIONAL SURETY CORP.
v.
FIRST NAT. BANK IN INDIANA et al.



The opinion of the court was delivered by: GOURLEY

This matter comes before the Court on motion of defendants for judgment on the pleadings and/or summary judgment.

This proceeding originated as an action in replevin to recover West Penn Power Company bonds of the par value of $ 20,000. An indemnity bond was given in the sum of $ 40,000 by plaintiff, conditioned to maintain title to the bonds as against the defendants, and when the writ of replevin was served upon the First National Bank in Indiana it delivered to the United States Deputy Marshal the bonds in question. After the expiration of 72 hours the bonds were delivered by the United States Marshal to the plaintiff. After defendant bank filed its answer it then, under Rule 36, Paragraph (a) of Federal Rules of Civil Procedure, 28 U.S.C.A., filed requests on plaintiff for admissions.

 The important points in these requests admitted are as follows:

 (a) The bonds were negotiable and payable to bearer.

 (b) G. S. Parnell, on September 10, 1948, delivered the bonds to defendant bank with a written order to sell them for his account.

 (c) Pursuant to the sale made under said order by Hemphill Noyes & Company to Salomon Brothers and Hutzler, of New York City, said Salomon Brothers and Hutzler became holders thereof in due course.

 (d) Pursuant to said sale and upon delivery of the bonds to Hemphill Noyes & Company for the purchasers, Salomon Brothers and Hutzler, Hemphill Noyes & Company paid the sale price $ 21,497.90 to defendant bank.

 (e) Upon receipt of the proceeds of the sale of said bonds on September 17, 1948, defendant bank deposited to the account of G. S. Parnell the sum of $ 21,497.90 less a small credit of $ 8.81 for postage and insurance.

 (f) The defendant bank, after having paid the sale price for the bonds to G. S. Parnell on January 9, 1949, was notified by Salomon Brothers and Hutzler, who admittedly were holders in due course through Hemphill Noyes & Company that a stop order had been lodged with West Penn Power Company against the transfer thereof, and demanded delivery in lieu thereof of like bonds.

 (g) Defendant bank, on January 19, 1949, purchased and replaced like bonds to take the place of the bonds in question which were delivered through Hemphill Noyes & Company to Salomon Brothers and Hutzler and thereupon the bonds in question were redelivered to defendant bank.

 (h) The defendant bank retained possession of said bonds following the date of their re-delivery until the writ of replevin was served in this case, at which time said bonds were delivered to the United States Deputy Marshall.

 The office of the motion for judgment on the pleadings or for summary judgment is for practical purposes the same, and often are both applicable, but if it is necessary to consider matters outside pleadings, motion for judgment on the pleadings is to be treated as a motion for summary judgment, and neither can be granted if there is any genuine issue as to any material fact. Barber, District Director v. Tadayasu, 9 Cir., 186 F.2d 775; Munn v. Robinson, D.C., 92 F.Supp. 60.

 Before such motion can be granted the right thereto must be clear. Hutchings v. Lando, D.C., 7 F.R.D. 668. And it must appear to be a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. Michel v. Maier, D.C., 8 F.R.D. 464.

 Under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. which provides for summary judgment, it was not intended to deprive litigants of a right to full hearing on the merits if any issue of fact exists. The procedure was not intended to be used as a substitute for regular trial where the outcome of the litigation depends upon disputed questions of fact. Merchants Indemnity Corp. of New ...


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