North Carolina National Bank v. Gillespie

BRANCH, Justice.

The threshold question presented by this appeal is whether defendant could demonstrate the existence of a genuine issue as to a material fact by raising an unpleaded defense by his evidence opposing plaintiff’s motion for summary judgment.

Nowhere in his answer did defendant assert the defenses raised by his affidavits filed in opposition to the motion for summary judgment.

Earlier cases took the view that evidence offered at a hearing on a motion for summary judgment must be supported by allegations in the pleadings. Cudahy Packing Co. v. U. S., 37 F. Supp. 563. The later cases…