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CARY L. HILL v. CONSUMER NATIONAL BANK

JANUARY 22, 1986

CARY L. HILL
v.
CONSUMER NATIONAL BANK



BEFORE WALKER, P.J.; ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal provides an object lesson regarding what showing is - and what is not - sufficient to avoid summary judgment in a suit on a promissory note where the maker asserts an affirmative defense.

 Under our law one who signs a note is personally obligated unless it affirmatively appears that he signs on behalf of another. Where on the face of the note one appears individually liable, he nevertheless may have a defense if he signed the note in blank and the payee/holder failed to honor an agreement to complete the note to show the signatory's representative capacity. In the face of the payee/holder's motion for summary judgment, however, this affirmative defense must be established via verified affidavits based upon personal knowledge or other equally reliable evidence. Failing such a response in this form, the payee/holder is entitled to summary judgment and the maker's defense is gone with the wind.

 II.

 On March 29, 1982, Cary L. Hill executed an interest bearing promissory note in the principal sum of $17,600.00 and delivered same to Consumer National Bank (hereinafter" Bank "), a national banking association domiciled and doing business in Hinds County, Mississippi. Hill was the Defendant below and is the Appellant here. The Bank was the Plaintiff below and is the Appellee here. The note was payable ninety-one (91) days from date of its making and bore interest at the rate of seventeen percent (17%) per annum. Without dispute, Hill failed to pay the note when due. On December 1, 1982, the Bank brought suit on the note by filing its complaint in the Circuit Court of Hinds County, Mississippi, demanding judgment of and against Hill in the aggregate amount of principal, accrued interest and reasonable attorneys fees.

 On September 8, 1983, the Bank invoked Rule 56, Miss.R.Civ.P., and sought summary entry of judgment in its favor. Attached to the Bank's motion was the affidavit of its president, John H. White, Jr., which, in pertinent part, stated:

 The promissory note *fn1 dated March 29, 1982, in the amount of $17,600.00, bearing interest at the rate of 17% per annum from date, which note is attached as Exhibit" A "to the Declaration and is the note

 sued upon, was executed by said Defendant [Hill] in payment of a previous note executed by Defendant. Said previous note was dated October 29, 1981, and was in the sum of $17,600.00. As of August 22, 1983, the total amount due on said note is $17,542.68 principal and $4,183.35 interest, for a total sum of $21,726.03. The interest is accruing at the rate of $8.17 per day.

 Although numerous demands were made on said Defendant to pay said note, he has failed and refused to pay the same, and it was necessary to turn this note over to an attorney to collect the same.

 On October 10, 1983, the Circuit Court entered its order sustaining the motion for summary judgment. The aggregate judgment entered against Hill, including attorneys fees, is in the amount of $28,968.04. *fn2 Immediately thereafter Hill filed what in effect was a motion for a rehearing or reconsideration of the summary judgment and on November 1, 1983, that motion was overruled and denied.

 III.

 Hill first complains of the absence of a final judgment from which this appeal may be taken. The record reflects an order of the circuit court entered October 10, 1983, which provides, in pertinent part, that:

 IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff's [Bank's] Motion for Summary Judgment in the amount of ...


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