Home Sav. Bank v. Bentley
Decision Date | 07 October 1958 |
Citation | 67 A.L.R.2d 1450,92 N.W.2d 377,5 Wis.2d 19 |
Parties | , 67 A.L.R.2d 1450 HOME SAVINGS BANK, a Wis. banking corporation, Appellant, v. James W. BENTLEY, alias, and Ralph Bentley, alias, individually and d/b/a Bentley Brothers Trucking, a partnership, et al., Respondents. |
Court | Wisconsin Supreme Court |
Action by the plaintiff bank against the defendants James W. Bentley and Ralph Bentley, individually and as co-partners doing business as Bentley Brothers Trucking, and R. B. General Trucking, Inc., to recover the amount of a $500 check which plaintiff had cashed. Bentley Brothers was the drawer and R. B. General Trucking, Inc., the payee of such check, which was drawn upon a bank other than the plaintiff.
The complaint alleged that Bentley Brothers Trucking was the drawer, R. B. General Trucking, Inc., was the payee, and Cudahy State Bank the drawee of such check.
The complaint also alleged that the plaintiff bank was a holder in due course of such check which was dated July 18, 1957; that the payee R. B. General Trucking, Inc., endorsed such check and delivered it to the plaintiff on July 26, 1957; and that on July 26, 1957, the defendants Bentley stopped payment on such check.
The defendants R. B. General Trucking, Inc., James W. Bentley and Ralph Bentley each filed separate answers.
The answer of R. B. General Trucking, Inc., denied that it had endorsed the check and alleged that it had been endorsed by one Roman Barutha individually.
The answer of James W. Bentley denied some allegations of the complaint on information and belief, and specifically denied that the plaintiff was a holder in due course. It also denied that Ralph Bentley had any interest in Bentley Brothers Trucking. Such answer further alleged that payment had been stopped on the check on July 22, 1957, and not July 26, 1957, as alleged in the complaint. This answer further contained a cross-complaint and counterclaim against R. B. General Trucking, Inc. The allegations of such cross-complaint and counterclaim are not material to the issues of the instant appeal except the allegation that at the times mentioned in the complaint James W. Bentley was an individual doing business as 'Bentley Brothers Trucking.'
The answer of the defendant Ralph Bentley denied most of the allegations of the complaint on information and belief, and specifically denied that he had any interest in Bentley Brothers Trucking at the times alleged in the complaint. Such answer affirmatively alleged that Ralph Bentley and James W. Bentley had been partners in the trucking business from January 17, 1956, to May 1, 1956, and that on May 1, 1956, James W. Bentley had purchased Ralph Bentley's interest in the partnership.
After issue was joined the plaintiff bank moved for summary judgment. In support of such motion there was filed the affidavit of the plaintiff's employee, Eunice Wuerzinger, who had handled the transaction of the cashing of the $500 check on July 26, 1957, by the plaintiff bank. Such affidavit stated that $500 in cash was paid out to Roman Barutha for such check after he had endorsed the same in his capacity as president of R. B. General Trucking, Inc. The check itself was attached to the Wuerzinger affidavit. It appears from the face of the check that the name of the drawer was printed thereon as 'Bentley Brothers' and immediately below such printed name James W. Bentley subscribed his signature. The named payee is The endorsement on the back is No counter affidavits in opposition to the motion for summary judgment were filed by any of the defendants, except James W. Bentley. The affidavit filed by James W. Bentley is by himself and contains no statement of evidentiary facts but merely enumerates certain issues of fact which he contended prevented the court from entering summary judgment.
The trial court by order entered December 18, 1957, denied the plaintiff's motion for summary judgment. From such order the plaintiff has appealed.
Glassner & Glassner, Lawrence Clancy, Milwaukee, for appellant.
John G. Jursik, Cudahy (John J. Devos, Milwaukee, of counsel), for defendants Bentley.
The issues on this appeal are:
(1) Did the fact, that the plaintiff filed an affidavit setting forth the evidentiary facts in connection with its cashing of the check and the sole affidavit filed in opposition thereto contained no evidentiary facts, require that plaintiff's motion for summary judgment be granted against all three defendants?
(2) Did the trial court possess the right to enter summary judgment in behalf of the plaintiff as to any of the defendants if the plaintiff were found not to be entitled to such judgment against all of them?
(3) Did the delay of eight days which occurred between the drawing and presentment of the check to the plaintiff present an issue of fact as to whether there had been an unreasonable delay in the presentment of the check so as to prevent such issue from being disposed of on a motion for summary judgment?
In resolving the first of such three issues there are two well recognized rules established by past decisions of this court which it is well to consider. One of these rules is that upon a motion for summary judgment the evidentiary facts set forth in on affidavit completely supplant any allegations or denials in the pleadings to the contrary. Laughnan v. Griffiths, 1955, 271 Wis. 247, 251, 73 N.W.2d 587. The other is that summary judgment is not to be granted in a situation where the evidentiary facts set forth in the affidavit or affidavits filed in support of the motion for summary judgment fail to touch upon a material issue raised by the pleadings. Hermann v. Lake Mills, 1957, 275 Wis. 537, 544, 82 N.W.2d 167.
With respect to the defendant Ralph Bentley, the pleadings raise an issue as to whether or not he was a partner of Bentley Brothers at the time the check was drawn. Inasmuch as he did not personally subscribe the check, in order for the plaintiff to be entitled to judgment against him it must prove the allegation of the complaint that he was such partner. The affidavit filed by the plaintiff in support of its motion for summary judgment set forth no evidentiary facts bearing on such issue. Therefore, the learned trial court properly denied the plaintiff's motion with respect to such defendant.
The Wuerzinger affidavit disposed of all issues raised by the answer of R. B. General trucking, Inc. We deem the omission of the word 'General' from the corporate name of such defendant as written upon the check to be wholly immaterial under the issues raised by the pleadings. The memorandum opinion of the trial court held that the plaintiff would have been entitled to have summary judgment entered against the defendant R. B. General Trucking, Inc., if it had been the only defendant. However, the trial court denied the plaintiff's motion as to such defendant on the ground that but one judgment could be entered in the action, and the plaintiff was not entitled to summary judgment against either of the Bentleys.
This is apparently a case of first impression in this court on the issue of whether a summary judgment may be granted the plaintiff against less than all of the defendants against whom relief is sought.
While the case of Scharine v. Huebsch, 1931, 203 Wis. 261, 234 N.W. 358, 360, did not involve a motion for summary judgment, the court there stated that it saw 'nothing in reason, as distinguished from precedent,' to prevent more than one judgment to be entered in an action. In that case the court's disposition of the case required the entry of more than one judgment. Later cases in which this also was done are Pierner v. Mann, 1946, 249 Wis. 469, 25 N.W.2d 83; Wojan v. Igl, 1951, 259 Wis. 511, 49 N.W.2d 420; and Puccio v. Mathewson, 1951, 260 Wis. 258, 50 N.W.2d 390. However, the foregoing cited cases are distinguishable from the instant case in that all of the relief granted to the plaintiffs in each case was embraced within a single judgment, and the second judgment...
To continue reading
Request your trial-
Associated Hospital Service, Inc. v. City of Milwaukee
...undisputed facts of the affidavits. Laughnan v. Griffiths, 1955, 271 Wis. 247, 251, 73 N.W.2d 587, and Home Savings Bank v. Bentley, 1958, 5 Wis.2d 19, 23, 92 N.W.2d 377, 67 A.L.R.2d 1450. The city stresses a fact that the income of the plaintiff from the fees collected from its subscribers......
-
Zezblatt v. Sampson
...v. Malnar, 1941, 237 Wis. 492, 297 N.W. 370; Laughnan v. Griffiths, 1955, 271 Wis. 247, 73 N.W.2d 587; Home Savings Bank v. Bentley, 1958, 5 Wis.2d 19, 92 N.W.2d 377, 67 A.L.R.2d 1450; McChain v. City of Fond du Lac, 1959, 7 Wis.2d 286, 96 N.W.2d 607; Hyland Hall & Co. v. Madison G. & E. Co......
-
Moutry v. American Mut. Liability Ins. Co.
...Abst. 553.7 (1955), 132 Colo. 202, 286 P.2d 622.8 (1958), 260 F.2d 275.9 (1964), 25 Wis.2d 364, 130 N.W.2d 875.10 (1958), 5 Wis.2d 19, 23, 92 N.W.2d 377, 380, 67 A.L.R.2d 1450.11 In accord: Steeno v. Wolff (1961), 14 Wis.2d 68, 73, 109 N.W.2d 452; Weber v. Hurley (1961), 13 Wis.2d 560, 562,......
-
Clark v. London & Lancashire Indem. Co. of America
...or deemed to be denied as is the case of facts alleged by answer as an affirmative defense. See Home Savings Bank v. Bentley (1958), 5 Wis.2d 19, 23, 92 N.W.2d 377, 67 A.L.R.2d 1450. The express statement made in defendant's motion that it was grounding the same on the pleadings as well as ......