LIBERTY LOAN CORPORATION v. Miller

190 S.E.2d 672 (1972)

LIBERTY LOAN CORPORATION of North Charlotte, v. Donald E. MILLER and wife, Beverly Miller.

No. 7226DC352.

Court of Appeals of North Carolina.

August 23, 1972.

*673 James L. Roberts, Charlotte, for plaintiff appellant.

Carpenter, Golding, Crews & Meekins by James R. Carpenter, Charlotte, for defendants-appellees.

MORRIS, Judge.

Summary judgment may be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.. . ." G.S. § 1A-1, Rule 56(c).

The party moving for summary judgment has the burden of clearly showing there is no genuine issue of material fact, and in ruling on his motion, the moving party's papers are carefully scrutinized while those of the opposing party are to be indulgently treated. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Miller v. Snipes, 12 N.C.App. 342, 183 S.E.2d 270 (1971), cert. denied 279 N.C. 619, 184 S.E.2d 883 (1971). In the case at bar, defendant's affidavit in support of her motion for summary judgment merely reiterates the allegations in her answer denying the execution of the note. Although plaintiff did not respond to the motion for summary judgment by affidavit, its verified complaint, when viewed in the light most favorable to plaintiff, shows a triable issue does exist. Brevard v. Barkley, 12 N.C. *674 App. 665, 184 S.E.2d 370 (1971). We hold that the pleadings and affidavit clearly show the existence of a genuine issue of material fact, that defendant was not entitled to judgment as a matter of law, and that summary judgment was improperly entered.

Reversed.

BROCK and HEDRICK, JJ., concur.