Opinion
No. 12083.
October 21, 1954.
Clifford F. Brown, Norwalk, Ohio, J. Vincent Aug, Cincinnati, Ohio, for appellants.
Sumner Canary, Cleveland, Ohio, Clarence M. Condon, Toledo, Ohio, for appellee.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
This case came on to be heard upon the record and briefs and oral arguments of counsel.
And it appearing that the amended complaint prays for judgment for the balance alleged to be due upon a certain promissory note executed by appellants;
And it appearing that a material fact in the controversy is whether the holder of the said promissory note who assigned it to appellee was a holder in due course;
And it being alleged in the answer that the note was negotiated and transferred to appellee after maturity and that the appellee was not a holder in due course thereof and no supporting affidavits being filed by either party;
And it appearing that the District Court sustained a motion for summary judgment filed by appellee and that under Rule 56 of Federal Rules of Civil Procedure, 28 U.S.C.A., summary judgment may be granted only if there is no dispute as to any material fact, Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971; Estepp v. Norfolk Western Ry. Co., 6 Cir., 192 F.2d 889; Cf. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967.
It is ordered that the judgment be and it hereby is reversed and the case is remanded to the District Court for further proceedings in accordance with this order.