318 F2d 713 Killoren Ea v. Seaboard Maritime Corporation

318 F.2d 713

D. J. KILLOREN and Patricia Spalding, as Co-Executors of the Estate of E.A. Killoren, Deceased, Appellants,

No. 19790.

United States Court of Appeals Fifth Circuit.

June 19, 1963.

Urban P. Van Susteren, Appleton, Wis., for appellant.

Leo L. Foster, Tallahassee, Fla., Hans A. Nathan, Trammell, Rand & Nathan, Washington, D. C., of counsel, for appellee.

Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.


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In this case federal jurisdiction depends on diversity of citizenship of the parties. The plaintiffs, who are the appellants here, are the executors of the estate of E. A. Killoren. It was the claim of the appellants that Killoren was an endorser and guarantor of a promissory note of the appellee, defendant below, Seaboard Maritime Corporation, given to and discounted by the Appleton State Bank of Appleton, Wisconsin, and, after the default of Seaboard, the appellant executors were required to pay the note and are entitled to recover from the maker, Seaboard, as the party primarily liable. Seaboard, for its defense, asserted that the Bank declined to lend to it and did not, in fact do so, and that the loan made by the Bank was to Killoren who turned over the funds to Seaboard without any promise by it or expectation by him of repayment. On an affidavit, admissions, records and interrogatories, the appellee moved for a summary judgment. These were considered by the district court along with an affidavit submitted on behalf of the appellants. The district court found there was no genuine issue of a material fact and granted Seaboard's motion for summary judgment. Leave to amend was denied. We find no error in the judgment of the district court. Its judgment is