Wahyou

This is an appeal from a summary judgment rendered by the United States District Court for the District *614 of Nevada, denying appellants, who allegedly own an undivided interest in the assets of the Diamond-S Ranch Co. corporation, equitable relief against that corporation and its directors. 1 Appellants urge that the District Court erred in not finding that they held such an interest in the assets and not ordering a distribution. Jurisdiction was based on diversity of citizenship, and the law of Nevada is applicable.

The Diamond-S Ranch Co. was incorporated in 1945. Corbari and Wahyou were both stockholders and directors. In 1947, Corbari executed a note which was assigned to the Bank of America in Stockton, California. In 1949, Corbari pledged his stock to secure this indebtedness. He executed a renewal note secured by his pledge agreement on July 10, 1950.

The Diamond-S Ranch Co. was dissolved on September 7, 1950. Section 1665 of the Nevada Compiled Laws provides in part that “[u]pon the dissolution of any corporation * * * the directors shall be trustees thereof. * * [Emphasis added.]

Corbari executed a second pledge of his stock to the bank in Stockton, California, on…

(concurring).

What persuades me to concur here is the fact that the cause is remanded for finding upon a stated issue on the basis not only of the present record, but of “any additional evidence the parties may offer.” The odd circumstance here is that the judgment below was entered upon a motion for summary judgment. Yet our opinion remands for determination of a stated issue, which means, necessarily, that there is and was a “genuine issue as to any material fact”. Since this genuine issue existed, the court was without authority to grant a summary judgment. Notwithstanding the existence of this genuine issue, there was no trial in the sense of Rule 43(a), 28 U.S. C.A. There was no testimony of witnesses “taken orally in open court”. The depositions used in support of the motions for summary judgment were taken merely for discovery purposes. There was no direct or cross-examination in the ordinary sense, nor opportunity for the judge to determine the credibility of witnesses from his observation of them.

It is true that both parties moved for summary judgment, but this circumstance does not enlarge the right to a summary judgment. F.A.R. Liquidating Corp. v. Brownell, 3 Cir.,…