Pendency of a counterclaim does not prevent granting of motion for summary judgment on plaintiff's claim and ordering separate trial on counterclaim, when defendant admits the plaintiff's claim but obtains repeated continuances of the trial.

1. Plaintiff's motion for a summary judgment in an action for goods sold and delivered should be granted, even though counterclaims are pending, when defendant admits his indebtedness but secures repeated continuances of the trial. (Rule 56 (a))

2.

Pendency of a counterclaim does not prevent granting of motion for summary judgment on plaintiff's claim and ordering separate trial on counterclaim, when defendant admits the plaintiff's claim but obtains repeated continuances of the trial, (Rule 42 (b))

WYCHE, D. J.

This matter comes before me on plaintiff's motion for judgment under rule 56 (a) of the Rules of Civil Procedure for the District Courts of the United States.

and

Plaintiff commenced this action in September, 1937, to recover the purchase price of two carloads of liquor sold defendant in May and June, 1937. By his answer defendant admitted his indebtedness in the amount stated, but set up two counterclaims. In his first counterclaim defendant alleged that he had an oral contract as plaintiff's distributor at Greenville, South Carolina, on an annual basis; that plaintiff had agreed to sell him its brands of whiskies at the same price it sold to its other distributors; that it had overcharged him in the sum of Seven Thousand Dollars ($7,000.00). In his second counterclaim dofendant alleged that plaintiff wrongfully took the distributor representation from him in June, 1937, to his damage in the sum of Twenty Thousand Dollars ($20,000.00). To the first counterclaim plaintiff plead a general donial and the statuto of frauds, and to the so cond counterclaim the samo dofenses and cortain alleged broaches of his distributor's contract by dofondant.