(dissenting).
I dissent, but concur in the observation that joint accounts have been on shifting sands in Utah. I might add that the same is true elsewhere. I have no quarrel with the general principles enunciated in the main opinion but hesitate to say they are apropos here.
Painter filed an affidavit, saying he was the sole contributor to the joint account. It stood unchallenged at the time of motion for summary judgment.1 Perhaps no one could refute the affidavit. At least no one did. That results in a factual situation where there was a survivor of a joint account. Presumably he owned it all. There was no pleading, proof or offer of proof to refute the contention by clear and convincing evidence based on equitable principles. The trial court was faced with a situation where there existed no genuine issue of fact, and there remained only a question of law. In concluding that the account was not subject to attachment, I believe the trial court followed the only course consonant with the rules of civil procedure and the cases attempting to construe them. The trial court should be sustained on procedural grounds alone, although I concede that the action of this court in hurdling the rules by remanding the case to take evidence could eventuate in a different result on the shifting joint account sands of Utah, — which, because of this case, may shift again.
. This case seems to be reminiscent of Dupler v. Yates, 10 Utah 2d 251, 351 P.2d 624 (1960).