{ "id": 8549489, "name": "MARIAH MOORE v. NELLIE GALLOWAY, ADMINISTRATRIX OF THE ESTATE OF WALTER NATHANIEL GALLOWAY, Deceased, and THE NORTHWESTERN BANK, A Body Corporate", "name_abbreviation": "Moore v. Galloway", "decision_date": "1978-02-21", "docket_number": "No. 7717SC280", "first_page": "394", "last_page": "397", "citations": [ { "type": "official", "cite": "35 N.C. App. 394" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "206 S.E. 2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11307159 ], "year": 1974, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/22/0459-01" ] }, { "cite": "209 S.E. 2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "23 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553239 ], "year": 1974, "pin_cites": [ { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0640-01" ] }, { "cite": "215 S.E. 2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "164-165" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550092 ], "year": 1975, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0138-01" ] }, { "cite": "179 S.E. 2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555455 ], "year": 1971, "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0696-01" ] }, { "cite": "180 S.E. 2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] } ], "analysis": { "cardinality": 397, "char_count": 6448, "ocr_confidence": 0.805, "pagerank": { "raw": 1.5672823543101733e-07, "percentile": 0.6780323872163976 }, "sha256": "de6cacf2d33d54a8d9bfda7a201a3fd9bfc03f40746f805ea593b59088420359", "simhash": "1:403a9e64ac562149", "word_count": 1097 }, "last_updated": "2023-07-14T19:24:32.681632+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Clark concur." ], "parties": [ "MARIAH MOORE v. NELLIE GALLOWAY, ADMINISTRATRIX OF THE ESTATE OF WALTER NATHANIEL GALLOWAY, Deceased, and THE NORTHWESTERN BANK, A Body Corporate" ], "opinions": [ { "text": "ERWIN, Judge.\nThe plaintiff contends that the court erred in granting the motion of the defendant-administratrix for summary judgment. We do not agree.\nAt the hearing on the motion for summary judgment, the defendant presented supporting affidavits of Ver lie Knight and Peggy Dalton, both bank employees, stating in substance that they witnessed the execution of the joint account on 11 March 1975 by Charlie and Walter Galloway. The trial court permitted oral testimony at the hearing as provided for in G.S. 1A-1, Rule 43(e), Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971). Mrs. Verlie Knight testified as a witness for the defendant that she \u201c. . . told Charlie that now if they sign at the bottom of the card this was putting this account in a joint account for right of survivorship and that if anything happened to him then the money in turn Walter would get half at his death and as soon as his estate was settled it would be his, so he asked me then to write his name on the line and I put the card outside the window (teller\u2019s) and that is why Walter\u2019s name, he signed it on two lines. We put Charlie\u2019s name under the bottom.\u201d The signature card introduced into evidence verified the contentions of the defendant. The card provided, in part, \u201cThis agreement is governed by the provisions of Section 41-2.1 of the General Statutes of North Carolina.\u201d The language of the joint account is virtually identical to that of G.S. 41-2.1(g). Further, G.S. 41-2.1(b)(3) is controlling here and provided prior to the 1977 amendment that:\n\u201cUpon the death of either or any party to the agreement, the survivor, or survivors, becomes the sole owner, or owners, of the entire unwithdrawn deposit subject to the claims of the creditors of the deceased and to governmental rights in that portion of the unwithdrawn deposit which would belong to the deceased had said unwithdrawn deposit been divided equally between both or among all the joint tenants at the time of the death of said deceased.\u201d\nIn our opinion, the defendant successfully carried her burden on the motion for summary judgment by supporting proof that there was a joint account with the right of survivorship. It then became incumbent upon the plaintiff to take affirmative steps to defend her position by offering proof of her own that there was a genuine issue of fact for trial. See G.S. 1A-1, Rule 56(e). This the plaintiff has failed to do. \u201cIf the defendant successfully carries his burden of proof, the plaintiff may not rely upon the bare allegations of his complaint to establish triable issues of fact, but must, by affidavits or otherwise, as provided by Rule 56, set forth specific facts showing that there is a genuine issue for trial.\u201d Haithcock v. Chimney Rock Co., 10 N.C. App. 696 at 699, 179 S.E. 2d 865 at 867 (1971).\nThe plaintiff contends further that the summary judgment entered below contained findings of fact, although labeled undisputed by the court, which are in fact disputed by the plaintiff, and which plaintiff contends in and of themselves demonstrate that the cause was not the proper subject for resolution by summary judgment. If findings of fact are necessary to revolve an issue as to a material fact, summary judgment is improper. This court held in Insurance Agency v. Leasing Corp., 26 N.C. App. 138, 142, 215 S.E. 2d 162, 164-165 (1975) that:\n\u201cAfter the hearing on plaintiff\u2019s motion for summary judgment under Rule 56, the trial judge proceeded to make what he termed \u2018Findings of Fact.\u2019 Summary judgment should be entered only where there is no genuine issue as to any material fact. If findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact. Although findings of fact are not necessary on a motion for summary judgment, it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment. The \u2018Findings of Fact\u2019 entered by the trial judge, insofar as they may resolve issues as to a material fact, have no effect on this appeal and are irrelevant to our decision. See Lee v. King, 23 N.C. App. 640, 643, 209 S.E. 2d 831 (1974); Eggimann v. Board of Education, 22 N.C. App. 459, 464, 206 S.E. 2d 754 (1974); 6 Moore\u2019s Federal Practice \u00b6 56.02[11] (2d ed. 1974).\u201d\nWe hold that the findings of fact here were not necessary to resolve any issues as to a material fact, that the defendant has shown that there was no genuine issue as to any material fact, and that the granting of the defendant\u2019s motion for summary judgment was proper.\nAffirmed.\nJudges Vaughn and Clark concur.", "type": "majority", "author": "ERWIN, Judge." } ], "attorneys": [ "Herman L. Taylor, for the plaintiff appellant.", "Griffin, Post, Deaton & Horsley, by W. Edward Deaton and Albert J. Post, for the defendant, Nellie Galloway, appellee." ], "corrections": "", "head_matter": "MARIAH MOORE v. NELLIE GALLOWAY, ADMINISTRATRIX OF THE ESTATE OF WALTER NATHANIEL GALLOWAY, Deceased, and THE NORTHWESTERN BANK, A Body Corporate\nNo. 7717SC280\n(Filed 21 February 1978)\nBanks and Banking \u00a7 4\u2014 status of bank account \u2014 joint account \u2014 summary judgment\nIn an action to determine the status of a bank account wherein plaintiff alleged that the account contained only the property of deceased and that deceased\u2019s heirs at law are entitled to the funds in the account, summary judgment was properly entered for defendant who contended that the account was a joint account with right of survivorship in deceased\u2019s brother.\nAPPEAL by plaintiff from Long, Judge. Judgment entered 19 November 1976 in Superior Court, ROCKINGHAM County. Heard in the Court of Appeals 1 February 1978.\nThe plaintiff filed her complaint for a declaratory judgment as to the status of a bank account with defendant, Northwestern Bank, in Madison. The plaintiff alleged that the bank account contained the property of the deceased, Charlie Galloway, solely, and that his heirs at law are entitled to the funds in the account.\nThe defendant, Walter Galloway, answered, alleging that the account was a joint account with right of survivorship in himself. Walter Galloway subsequently died, and his answer was adopted by Nellie Galloway, administratrix of the estate of Walter Galloway, who thereafter filed a motion for summary judgment, which was allowed, and the plaintiff appealed.\nHerman L. Taylor, for the plaintiff appellant.\nGriffin, Post, Deaton & Horsley, by W. Edward Deaton and Albert J. Post, for the defendant, Nellie Galloway, appellee." }, "file_name": "0394-01", "first_page_order": 422, "last_page_order": 425 }