(dissenting).
Marjorie Lamp sued the wrong party, to-wit: The Garretson Bank — Bank was not, and is not, the wrongdoer. Carol Braa is the wrongdoer. Lamp is suing a target defendant.
Failure to give the requisite notice pursuant to SDCL 57A-4-406(4) is, by overwhelming authority, an absolute bar to suit on the alleged forged instrument. Spears Carpet Mills, Inc. v. Century National Bank of New Orleans, 85 B.R. 86 (W.D.Ark.1988); Jensen v. EssexBank, 396 Mass. 65, 483 N.E.2d 821, 41 U.C.C. Reporting Service 1366 (1985); Space Distributors, Inc. v. Flagship Bank of Melbourne, 402 So.2d 586, 32 U.C.C. Reporting Service 517 (Fla.App.1981); Indiana National Corp. v. FACO, Inc., 400 N.E.2d 202, 29 U.C.C. Reporting Service 194 (Ind. App.1980); Board of Higher Education of City of New York v. Bankers Trust Co., 86 Misc.2d 560, 383 N.Y.S.2d 508 (N.Y.Sup.Ct. 1976); Kiernan v. Union Bank, 55 Cal. App.3d 111, 127 Cal.Rptr. 441, 18 U.C.C. Reporting Service 1026 (1976); Pine Bluff National Bank v. Kesterson, 257 Ark. 813, 520 S.W.2d 253, 16 U.C.C. Reporting Service 805 (1975).
Marjorie Lamp advocates that knowledge which the Bank had, or should have been aware of, will supplant the specific notice requirement imposed by the statute cited above. Such an argument will not feed the bulldog. Our Court addressed such advocacy in Flaherty v. Bank of Kimball, 75 S.D. 468, 68 N.W.2d 105 (1955). We analyzed, in Flaherty, a predecessor statute to the aforesaid statute. This Court barred a state claim against the bank and set forth our observations:
The question presented is whether or not a bank is relieved of liability irrespective of its knowledge of the facts or negligence in the first instance if a depositor fails to give notice in conformity with this statute. In Herbel v. People’s State Bank of Ellinwood, 170 Kan. 620, 228 P.2d 929, 934, construing a similar statute, the Court said “that the bank was not liable unless the depositor notified the bank in conformity to the provisions of the statute.” And such nonliability of the bank resulted by virtue of the statutes irrespective of the bank’s negligence. That is the clear legislative mandate and the courts are bound by it. The McCormick v. Rapid City Nat. Bank case [67 S.D. 444, 293 N.W. 819] impliedly recognizes that such is the effect of the statute.
68 N.W.2d at 109.
SDCL 57A-4-406 requires a specific notice. Lamp’s case rests on the letter. Ed-munson requested an accounting of her checking account. Edmunson expressed nothing concerning a CD being negotiated or a forgery. Without factual support for the claim that a notice of forgery was given, the suit of Marjorie Lamp is barred by SDCL 57A-4-406(4). Flaherty at 109.
The majority writer’s reliance on Tag-gart borders on the ludicrous. An eleventh hour affidavit was there filed (in the case before us it is also “eleventh hour” and contradictory) to create an issue of fact (the same as in this case). In 1990, the South Dakota Supreme Court would have no part of such legal shenanigans. At 503 of Taggart, we deplored such a ruse and expressed:
In Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.1983), the court was quick to pierce the ruse of a contradictory affidavit submitted for *587the purpose of creating á material issue of fact when there was no explanation for the change in testimony from the deposition to the affidavit. Echoing our sentiment, the Eighth Circuit said:
If testimony under oath, however, can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment. A party should not be allowed to create issues of credibility by contradicting his own earlier testimony.
... Likewise, barring an explanation for his change in testimony or a showing that his answers were ambiguous and the affidavit clarified them, Taggart’s affidavit did not create a material issue of fact_ (Emphasis supplied mine).
In the name of consistency, I would not jettison our previous holdings in Flaherty or Taggart.
Summary judgment reaches, not just issues of material fact. Summary judgment also reaches the dismissal of actions, as a matter of law. In other words, if you take the facts and apply them to the law, then, as a matter of law, if the cause of action fails, the summary judgment should be entered. This is exactly the course of action which the trial court followed. Simply because there are issues of fact does not mean that a trial court cannot grant a summary judgment. It must be a material fact — a fact related to the cause of action. We said it like this, 10 years before I came to serve on this Court, as follows:
If it is made clearly to appear on such a motion [summary judgment] that even though there is an issue [formal issue may be revealed by supporting affidavits] under the pleadings there is in fact no dispute as to the controlling material facts, then the court should enter summary judgment.
Hackworth v. Larson, 83 S.D. 674, 165 N.W.2d 705 (1969). There are, ordinarily, questions of fact in every lawsuit. Our courts cannot try every case where a fact issue arises. If some of the summary judgment students would walk the extra mile, they might peruse a case one year after the old grand-daddy (Wilson) was handed down: Northwestern Public Service Co. v. Chicago & N.W. Ry. Co., 84 S.D. 271, 170 N.W.2d 351 (1969). In Northwestern, our language mentioned “a sham, frivolous, or unsubstantial fact” so “that it would be futile to try.” If a trial court can reasonably hazard that the facts expose a “sham” or a “frivolous” lawsuit; or if a trial court can obviously conclude “that it would-be futile to try” because there are no material facts at issue (as it reviews the pleadings), then why exercise futility? Again, mere issues of fact do not get you by a summary judgment motion. Sabers, J., takes it upon himself to quote a recent unanimous opinion written by this author, Thiewes in 1989. Thiewes is not inconsistent with this writing or the writing of Justice Amundson for, in Thiewes, the moving party did fail to meet its burden; to the contrary, in this case, the First National Bank met its burden as outlined above. Dice it or slice it, rub it or scrub it, the “cover up” affidavit, filed to contradict sworn testimony in a deposition, simply contradicts the credibility of the same party, which is not a valid probative force to create a material issue of fact; legally, it does not deprive the bank of its vital content and force to secure a summary judgment. Taggart at 503. My conclusion is: It is futile to try this case because the controlling material facts cannot be legally plugged into the alleged cause of action.
The trial court should be affirmed.