Kielpinski v. Tomaro Contractors, Inc.

• Decision Date: 28 June 1960
• Parties: Sylvester KIELPINSKI, Appellant, v. TOMARO CONTRACTORS, INC., a demestic corporation, Defendant, City of Milwaukee, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 919

103 N.W.2d 919

11 Wis.2d 53

Sylvester KIELPINSKI, Appellant, v. TOMARO CONTRACTORS, INC., a demestic corporation, Defendant, City of Milwaukee, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

June 28, 1960.

Phillips, Phillips, Hoffman & Lay, Milwaukee, for appellant.

Walter J. Mattison, City Atty., F. Ryan Duffy, Jr., Asst. City Atty., Milwaukee, for respondent.

Stewart G. Honeck, Milwaukee, for defendant.

BROADFOOT, Justice.

The grounds advanced by the city in support of its motion for summary judgment were insufficient and the trial court was correct in refusing to grant summary judgment thereon.

The city did not adopt the correct procedure. The complaint is based upon allegations of negligence. It does not plead violation of sec. 81.15, Stats., referring to defective streets and sidewalks, nor does it allege a nuisance. As framed, the complaint would be subject to demurrer or to a motion to make the complaint more definite and certain. However, the summary judgment procedure is not calculated to supplant a demurrer. Hermann v. City of Lake Mills, 275 Wis. 537, 82 N.W.2d 167; Town of Blooming Grove v. City of Madison, 275 Wis. 328, 81 N.W.2d 713; Ausen v. Moriarty, 268 Wis. 167, 67 N.W.2d 358; Batson v. Nichols, 258 Wis. 356, 46 N.W.2d 192. One practical reason therefore is stated in the Hermann case as follows (275 Wis. at page 543, 82 N.W.2d at page 171).

'* * * As was pointed out in Frederickson v. Kabat, 1951, 260 Wis. 201, 203, 50 N.W.2d 381, a motion for summary judgment is not a substitute for a demurrer and may not be used for such purpose. This is because where a demurrer is sustained the plaintiff, except in exceptional situations not necessary to be considered here, is given an opportunity to plead over, which right is denied when a summary judgment dismissing the complaint on the merits is entered. * * *'

The plaintiff contends that the complaint is sufficient to allege a cause of action under the provisions of sec. 81.15, Stats., of which both the trial court and this court may take judicial notice, or that it sufficiently alleges a cause of action based on nuisance. Because the trial court granted the summary judgment on grounds other than those advanced by the city, the plaintiff states that it had no opportunity to present affidavits or argue the questions of nuisance or statutory liability.

The record presented to the trial court is insufficient to support his reason for granting the summary...