AMERICAN BANK AND TRUST COMPANY v. Elzey

Annotate this Case

214 S.E.2d 800 (1975)

AMERICAN BANK AND TRUST COMPANY v. Horace R. ELZEY et al.

No. 7520SC79.

Court of Appeals of North Carolina.

May 21, 1975.

*801 Thomas J. Caldwell, Monroe, for plaintiff-appellee.

John E. McDonald, Jr., Charlotte, for defendants-appellants.

HEDRICK, Judge.

Defendants' exception to the judgment presents for review the face of the record proper, but such review is limited to the question of whether error of law appears on the face of the record, which includes *802 whether the facts found or admitted support the judgment and whether the judgment is in proper form. Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968).

A motion for judgment on the pleadings pursuant to G.S. § 1A-1, Rule 12(c), should not be granted unless "the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." 5 Wright and Miller, Federal Practice and Procedure § 1368 (1969) (footnotes omitted); Accord, Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974).

While the allegations in the pleadings and the inferences to be drawn therefrom must be viewed in the light most favorable to the nonmoving party, we find nothing in defendants' further answer and defense which gives rise to a material question of fact or constitutes a defense to plaintiff's claim. At most, defendants' further answer and defense alleges a failure of plaintiff, either on its own or through the receiver, to collect on the accounts receivable held by it as collateral for the promissory note. By the terms of the guaranty agreements executed by each of the defendants and admitted by them in their answer, defendants guaranteed payment and not merely collection of the loan by plaintiff to Simetronics. Therefore, upon default by Simetronics, plaintiff was free to collect the entire amount due from the defendants without obtaining a judgment against Simetronics or exhausting the collateral, the accounts receivable. Credit Corp. v. Wilson, 281 N.C. 140, 187 S.E.2d 752 (1972); 38 Am.Jur.2d, Guaranty § 114 (1968). In any event, when the defendants have paid Simetronics's obligation to plaintiff under the guaranty agreements, they would be entitled under the agreements to collect the accounts receivable.

The judgment appealed from is

Affirmed.

BRITT and MARTIN, JJ., concur.