21 N.C. App. 205 | N.C. Ct. App. | 1974
The transfers under attack in this lawsuit bear all the badges of fraud. Defendants did not respond to plaintiffs’ motion for summary judgment. If defendants had simply responded by affidavits tending to show, for example, that “full value” was paid for the property then summary judgment clearly would have been inappropriate for summary judgment is not a vehicle for conducting a trial by affidavits. Despite defendants’ failure to respond, we hold that the case was one for trial on the merits and that summary judgment in favor of plaintiffs was inappropriate. The opinions as to the fair value of the property contained in the documents filed by plaintiffs were not sufficient to establish the fair value as a matter of law and thereby remove that question from consideration by the jury. We are aware of cases from other jurisdictions holding that uncontra-dicted and unimpeached testimonial evidence from qualified witnesses is sufficient to support summary judgment, even in favor of the party with the burden of proof. We are of the opinion, however, that our Supreme Court takes a contrary view and would hold that although plaintiffs’ evidence as to value was uncontradicted and unimpeached, the material question of value remained for resolution by the jury which would
The appellate courts of this State have repeatedly emphasized that summary judgment is a drastic remedy and should be allowed in only those cases where it is clearly appropriate. If there is the slightest doubt, the trial court should deny the motion and allow trial on the merits. If there is to be error, the error should be in failing to allow the motion and in favor of allowing a trial. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189.
The judgment entered allowing plaintiffs’ motion for summary judgment is reversed.
Reversed.
