OCCIDENTAL REALTY COMPANY, INC. v. General Insurance Company of America

PER CURIAM: Appellants were sued for money alleged to have been erroneously paid by ap-pellee on appellants’ behalf to the State of West Virginia under a surety contract. The motions judge granted appellee’s motion for summary judgment after refusing to allow oral testimony in defense of the motion. He held that he could not take oral testimony either in support or in opposition to a motion for summary judgment under Superior Court Civil Rule 56. Appellants contend that this was error. We agree and reverse. Superior Court Civil Rule 56(c) does not list oral testimony as material to be used during a hearing on a motion for summary judgment; however, Superior Court Civil Rule 43(e) 1 permits the court to hear oral testimony on such a motion. See 6 J. Moore, Federal Practice ¶ 56.-11 [8] (2d ed. 1948). See also 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2416 (1971). While it is within the sound discretion of the trial court to exclude oral testimony during a motion for summary judgment, 2 here that discretion was not exercised. The judgment of the trial court is Reversed. Footnotes [1] Super.Ct.Civ.R. 43 and 56 are identical to Fed.R.Civ.P. 43 and 56. [2] See McGuire v. Columbia Broadcasting Sys., Inc., 399 F.2d 902, 907 (9th Cir.1968).