Opinion
No. 20,440.
Decided February 10, 1964.
Action on promissory note. From a summary judgment in favor of bank, certain of the defendants bring error.
Reversed.
1. BILLS AND NOTES — Forgery of Signatures — Summary Judgment — Oral Argument — Admissions. In oral argument before Supreme Court, counsel was permitted to state that signatures of three plaintiffs in error were forgeries, to which statement counsel for defendant in error agreed; summary judgment of trial court being the result of gross fraud practiced on both the bank and the trial court cannot be permitted to stands.
Error to the District Court of Jefferson County, Hon. Martin C. Molholm, Judge.
Mr. EUGENE J. ROBERTS, for plaintiffs in error.
Messrs. HOLLEY and BOATRIGHT, for defendant in error.
THE parties appear here in reverse order to their appearance in the trial court where the defendant in error, herein referred to as the bank, was plaintiff, and plaintiffs in error, herein referred to as defendants, were defendants.
The bank commenced this action on October 6, 1960. It sought to recover from the defendants the sum of $64,000.00, together with interest, attorney fees and costs alleged to be due on a promissory note signed by all of the defendants and payable to the bank.
On June 12, 1962, a summary judgment was entered in favor of the bank and against all of the defendants for the sum of $78,634.17.
The defendants are here by writ or error seeking reversal.
On oral argument before this court counsel of record for plaintiffs in error did not appear. Other counsel did appear and by leave of this court was permitted to make a statement in behalf of Luby, Fisher, and Sigman. He stated, and counsel for the bank agreed, that the foregoing names appearing on the note on which the judgment was entered are forgeries.
Thus it is manifest that the judgment of the trial court is the result of gross fraud practiced on the bank and the trial court by one of the defendants other than Luby, Fisher, and Sigman. Such a judgment cannot be sustained.
The judgment is reversed and the cause remanded with directions to the trial court to vacate the summary judgment, to permit the parties to plead as they may be advised, and to adjudicate the rights and duties of parties properly brought before the court.
MR. JUSTICE SUTTON and MR. JUSTICE PRINGLE concur.