Albert B. COLBY, Ray B. Lucas and Arnold J. Grasmoen, Receivers of Arizona Savings and Loan Association, Appellants,
BANK OF DOUGLAS a corporation, Appellee.
[91 Ariz. 86] David J. Perry Ralph G. Smith, Jr., and Allan J. Stanton, Phoenix, for appellants.
Ryley, Carlock & Ralston, Phoenix, for appellee.
STANFORD, Superior Court Judge.
This is an appeal from an order granting summary judgment in an action brought by the plaintiff Bank of Douglas against the Receivers of the Arizona Savings and Loan Association.
The summary judgment was based upon the plaintiff's affidavit which stated the following facts: On June 12, 1959, one Walter L. Varner, Jr., presented to the Bank of Douglas a check for $2,000.00 drawn by Arizona Savings and Loan Association upon the First National Bank of Arizona payable to the order of Varner; the payee endorsed the check in blank and delivered it to the Bank of Douglas for a valuable consideration, to-wit, the issuance of a draft drawn by the Bank of Douglas upon the Hanover Bank and payable to said Varner; the Bank of Douglas presented the said check for payment by forwarding it through normal channels to First National Bank of Arizona; the check was not paid and was dishonored by reason of an order of the Superintendent of Banks stopping payment thereon; and that the Bank of Douglas received the check drawn by Arizona Savings and Loan Association complete and regular on its face in good faith and without notice of any infirmity or defect.
The defendants filed an affidavit concerning the issuance of the check to Varner by the Arizona Savings and Loan Association without his having made any prior application for withdrawal of funds, and pointing out § 6-420 A.R.S. which provides [91 Ariz. 87] that a shareholder give at least thirty days notice prior to such withdrawal.
In their unverified answer filed subsequent to the filing of plaintiff's affidavit the defendants included an allegation on information and belief that the check was presented to the Bank of Douglas for collection only and that the Bank in accepting the check from Varner acted only as the collection agent.
On July 8, 1960, plaintiff moved for and was granted a summary judgment. The law is well settled that a summary judgment should never be entered unless the facts are clear and undisputed. Phoenix Feed & Seed Co. v. Adams, 78 Ariz. 292, 279 P.2d 447 (1955).
The facts alleged in the pleadings are not the sole factors to be considered in passing on a motion for summary judgment; all those shown by the record as it stands when a motion is made, or submitted, enter into the matter. Suburban Pump & Water Co. v. Linville, 60 Ariz. 274, 135 P.2d 210 (1943).
The mere statement in a pleading, when attacked by a motion for summary judgment supported by proof of specific facts in the form of an affidavit or deposition, places on the author of the statement the obligation to present something which will show that when the date of trial arrives, he will have some proof to support the allegations in the pleadings. He cannot withhold this showing until the time of trial. Stevens v. Anderson, 75 Ariz. 331, 256 P.2d 712 (1953); Hale v. Brown, 84 Ariz. 61, 323 P.2d 955 (1958); Perez v. Tomberlin, 86 Ariz. 66, 340 P.2d 982 (1959).
The defendants did not meet this obligation by presenting proof in the form of affidavits to show that there is an issue of facts. The conclusionary statements in their unverified answer do not indicate that they have any evidence which would support their allegations.
However, the defendants claim that the plaintiff's affidavit of February 11, 1960, conflicts with the allegations of his earlier complaint, and that the facts set out in the complaint do not show that the plaintiff was a holder in due course.
The complaint alleged that on June 12, 1959, the Arizona Savings and Loan Association drew a check for $2,000.00 upon the First National Bank of Arizona payable to Walter L. Varner, Jr.; that the check was presented at the Yuma Downtown Branch of the Bank of Douglas and forwarded to the First National Bank of Arizona for collection; that payment on said check was refused by reason of an order of the Superintendent of Banks of the State of Arizona; that the check was redelivered to the Bank of Douglas and returned to the payee [91 Ariz. 88] Varner; and that thereafter, for valuable consideration, the plaintiff purchased the check from the payee and took a written assignment thereof.
The defendants' contention raises the question whether we can consider an affidavit which conflicts with the complaint. There are times when on a motion for summary judgment affidavits going beyond the complaint can be considered. The judgment finally disposes of the action, and if facts appear in affidavits which would justify an amended complaint, there may be ground for treating the complaint as though it were already amended to conform. State of Arizona v. Barnum, 58 Ariz. 221, 118 P.2d 1097 (1941); Seaboard Terminal Corp. v. Standard Oil Co., 104 F.2d 659 (2d Cir. 1939). No purpose could be served by our remanding the case to the trial court for the sole purpose of amending the complaint. Therefore we will treat the plaintiff's complaint as though it had been amended to conform to the affidavit, as the trial court did.
It is clear that the facts set forth in the plaintiff's affidavit show that plaintiff was a holder in due course. Section 44-452 A.R.S. states the requirements for being ...