Dottai v. Altenbach
| Decision Date | 05 March 1963 |
| Parties | Ralph A. DOTTAI, Plaintiff-Respondent, v. Edward J. ALTENBACH, Frieda Altenbach, Henry C. Mertz, Jr., and Ernest Pape, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Donald E. Koehn, Sheboygan Falls, Ben E. Salinsky, Sheboygan, of counsel, for appellants.
Wayne W. Schlosser, Sheboygan, for respondent.
The main thrust of the defendants' argument is the insufficiency of the counter-affidavit opposing their motion for summary judgment in that it contained conclusions of law, references to possible evidence the plaintiff hoped to produce at the trial and no evidentiary facts. Before the weakness of the defense is considered this court must look to the strength of the attack. We pointed out in Hyland Hall & Co. v. Madison G. & E. Co. (1960), 11 Wis.2d 238, 105 N.W.2d 305, and we stress again that in deciding a motion for summary judgment, this court first examines the moving papers or documents to determine whether the moving party has made at least a prima facie case for granting summary judgment under the statute. If such a case has been made, the court then examines the opposing party's affidavits and other proof to determine whether facts are shown which the court deems sufficient to entitle the opposing party to a trial. If the pleadings make a case for a trial of a material issue of fact, which these pleadings do, summary judgment will be denied unless it appears from the affidavits that different conclusions of essential ultimate facts cannot reasonably be drawn. Hanson v. Halvorson (1945), 247 Wis. 434, 19 N.W.2d 882. It is a rare case when summary judgment can be granted in an action grounded on negligence.
Sec. 270.635(2), Stats., requires a motion for summary judgment on behalf of the defendant to be supported by an affidavit of a person who has knowledge thereof and which affidavit sets forth evidentiary facts showing the defendant's denials or defenses are sufficient to defeat the plaintiff and by an affidavit of the defendant that he believes the action has no merit. The affidavit in support of the defendants' motion was made by counsel and stated the plaintiff had no valid cause of action against the defendants on any grounds whatsoever. This statement does not meet the requirements of an affidavit of the moving party. An affidavit by an attorney on behalf of his client is not the affidavit of the client and is no more effective than one made by a nonparty. Fischer v. Mahlke (1963), 18 Wis.2d 429, 118 N.W.2d 935.
The statute also requires an affidavit by the person who has knowledge of the evidentiary facts set forth therein. Only in a few cases are attorneys possessed of the personal knowledge of the necessary evidentiary facts to support or oppose a motion for summary judgment. Affidavits on information and belief are not sufficient. McNally v. Goodenough (1958), 5 Wis.2d 293, 92 N.W.2d 890; McChain v. Fond Du Lac (1959), 7 Wis.2d 286, 96 N.W.2d 607. Routine identification and incorporation of adverse examinations and possibly other documents in an affidavit of counsel are permissible, but the statute contemplates affidavits of facts by knowledgeable persons who would be witnesses at the trial. Parts of adverse examinations included in affidavits are generally inconclusive. While adverse examinations may tend to prove a fact, it must be remembered the person examined has no opportunity on such examination to counteract or explain the testimony; and what is more important, such examinations do not generally negative all the circumstances which would tend to support an inference of an essential ultimate fact to the contrary. The conclusiveness of such facts generally are destroyed by cross examination. As much can be said for affidavits concerning factual matters. Compare Becker v. LaCrosse (1960), 9 Wis.2d 540, 101 N.W.2d 677, with Becker v. LaCrosse (1961), 13 Wis.2d 542, 109 N.W.2d 102. Unless affidavits dealing with factual matters are conclusive, a motion for summary judgment would result in a trial on affidavits which is not within the scope of summary judgment procedure. Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9; Zezblatt v. Sampson (1961), 12 Wis.2d 303, 107 N.W.2d 122.
When such a drastic remedy as summary judgment is sought, the affidavits to be effective must set forth evidentiary facts which if on behalf of the plaintiff entitle him to judgment or which if on behalf of the defendant show his denials or defenses are...
To continue reading
Request your trial
-
Murphy v. Columbus McKinnon Corp.
...of negligence. Ceplina v. S. Milwaukee Sch. Bd., 73 Wis. 2d 338, 342, 243 N.W.2d 183 (1976) ; accord Dottai v. Altenbach, 19 Wis. 2d 373, 375, 120 N.W.2d 41 (1963) ("It is a rare case when summary judgment can be granted in an action grounded on negligence"); Schuh v. Fox River Tractor Co.,......
-
Megal v. VISITOR & CONVENTION BUREAU
...from the undisputed facts. See Ritt v. Dental Care Assocs., 199 Wis. 2d 48, 64, 543 N.W.2d 852 (Ct. App. 1995); Dottai v. Altenbach, 19 Wis. 2d 373, 375, 120 N.W.2d 41 (1963). Stated differently, "[w]e will reverse a summary judgment if a review of the record reveals . . . there are undispu......
-
Fortier v. Flambeau Plastics Co., a Div. of Flambeau Corp.
...338, 342, 243 N.W.2d 183, 185 (1976) (summary judgment does not lend itself well to negligence questions); Dottai v. Altenbach, 19 Wis.2d 373, 375, 120 N.W.2d 41, 42 (1963) ("It is a rare case when summary judgment can be granted in an action grounded on negligence."); State Bank of La Cros......
-
Jahns v. Milwaukee Mut. Ins. Co.
...court. Under the rule of Hyland Hall & Co. v. Madison Gas & Electric Co. (1960), 11 Wis.2d 238, 105 N.W.2d 305, and Dottai v. Altenbach (1963), 19 Wis.2d 373, 120 N.W.2d 41, we first examine the moving papers and documents to determine whether the moving party has made a prima facie case fo......