Atchison v. McGee

• Citation: 296 P.2d 860,141 Cal.App.2d 515
• Court: California Court of Appeals
• Decision Date: 14 May 1956
• Parties: James P. ATCHISON and James C. Atchison, Plaintiffs and Respondents, v. Lulu B. Stepp McGEE, Defendant and Appellant. Civ. 8836.

Page 860

296 P.2d 860

141 Cal.App.2d 515

James P. ATCHISON and James C. Atchison, Plaintiffs and Respondents, v. Lulu B. Stepp McGEE, Defendant and Appellant.

Civ. 8836.

District Court of Appeal, Third District, California.

May 14, 1956.

Douglas A. Pease, San Francisco, for appellant.

Colley & Sakuma, Sacramento, for respondents.

SCHOTTKY, Justice.

Plaintiffs commenced an action against defendant to quiet title to certain real property in Sacramento County. Defendant filed an answer denying the material allegations of plaintiffs' complaint and alleging that she was the true owner of said real property. Thereafter plaintiffs filed a motion for summary judgment based upon the affidavit of James P. Atchison, one of the plaintiffs. Defendant filed no counter-affidavit, and, following a hearing on the motion at which both plaintiffs and defendant were represented by counsel, the court made an order granting said motion, and summary judgment was entered in favor of plaintiffs.

Defendant has appealed from the judgment, and her first and principal contention is that the affidavit filed by plaintiffs in support of their motion was insufficient as a matter of law to support the order granting a summary judgment.

Defendant quotes from section 437c of the Code of Civil Procedure as follows:

'The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.'

The affidavit upon which plaintiffs' motion was based set forth that on January 17, 1950, the Sanauncie Harris was the owner of the real property in controversy; that on said date she 'made, executed and delivered a Grant Deed' of said property to plaintiffs and Georgia Atchison as joint tenants and that said deed was recorded on January 18, 1950; that since said deed was recorded both Sanauncie Harris and Georgia Atchison have died and that plaintiffs are the sole owners of the said property; that on May 25, 1951, defendant caused to be recorded a document dated August 17, 1950, purporting to be a gift deed of said property from Sanauncie Harris to defendant; that plaintiffs have been in possession of said property since January 17, 1950, and that defendant never has been in possession of it nor has she paid any taxes on it; that such facts are within the 'personal knowledge of affiant, and if called as a witness, affiant will testify completely to the same.' (Italics ours.)

As hereinbefore stated, defendant filed no counter-affidavit.

In Cone v. Union Oil Co., 129 Cal.App.2d 558, at pages 562, 563, 277 P.2d 464, at page 467, the court said:

'Since plaintiff failed to file any affidavit in opposition to the affidavit filed on behalf of the defendant, the court was entitled to accept as true the facts therein stated, which were within the personal knowledge of the affiant and to which the affiant could competently testify. Coyne v. Krempels, supra, 36 Cal.2d at pages 261-262, 223 P.2d 244; see Holland v. Lansdowne-Moody Co., Tex.Civ.App., 269 S.W.2d 478, 481. Plaintiff urges, however, that the pleadings herein raise particular issues of fact which preclude the granting of a motion for summary judgment. Plaintiff has fallen into the error of relying on her complaint as a means of disputing the affidavit filed on behalf of defendant. The fallacy of this position is demonstrated in Coyne v. Krempels, supra, and Hardware Mut. Ins. Co. v. Valentine, 119 Cal.App.2d 125, 129, 259 P.2d 70, which lay down the rule that the failure to file counter-affidavits cannot be remedied by resort to the pleadings. As pointed out in the careful analysis of this question in the Coyne case, the sufficiency of the allegations of a complaint do not determine the motion for a summary judgment. Rather, it must be determined from the affidavits whether there exists a genuine issue as to any material fact. Often there is no genuine issue of fact, although such an issue is raised by the formal pleadings. Absent a genuine issue of fact as disclosed by the affidavits, a party is not entitled to proceed to trial and the court, applying the law to the uncontroverted material facts, may render a summary judgment.'

Defendant contends that the affidavit filed by plaintiffs was insufficient because no copies of the documents relied upon were attached to the affidavit and that therefore, affiant could not competently testify to the facts, nor could such facts be within his personal knowledge as required by said section 437c. She disputes plaintiffs' statement that the writing of the word 'completely' in the affidavit was a clerical error, it being the intention to write the word 'competently' as provided in the cited code section. We think it is clear that plaintiffs intended to use the word 'competently', but in any event the word 'completely' would serve the same purpose because it is difficult to understand how a witness could testify 'completely' without testifying 'competently'. We shall, therefore,...