Larsen v. Roberts, No. 83-98
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | Before ROONEY; CARDINE |
| Citation | 676 P.2d 1046 |
| Parties | Glen Lloyd LARSEN and Margaret Leann Larsen, husband and wife, individually, jointly and severally, Appellants (Defendants), v. H.C. ROBERTS, Jr., and Lavonne Roberts, husband and wife, Appellees (Plaintiffs). |
| Docket Number | No. 83-98 |
| Decision Date | 08 February 1984 |
Page 1046
v.
H.C. ROBERTS, Jr., and Lavonne Roberts, husband and wife, Appellees (Plaintiffs).
Michael D. Zwickl, Casper, for appellants.
Robert O. Anderson of Andrews & Anderson, P.C., Riverton, for appellees.
Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.
Page 1047
CARDINE, Justice.
This appeal is from the granting of a summary judgment in a civil action brought to foreclose a mortgage upon real property.
Appellants raise a single issue on appeal:
"Whether the District Court may accept affidavits in support of a motion for summary judgment that were not filed contemporaneously with the motion as required by Wyoming Rules of Civil Procedure, Rule 6(d) 1 and without motion for leave of court for late filing."
We will affirm in part and reverse in part.
Mr. and Mrs. Larsen executed and delivered to Mr. and Mrs. Roberts a promissory note and mortgage in August 1980. The Larsens failed to make the 1982 payment and were in default. After demand for payment and no response, this action was instituted.
Appellees (plaintiffs) filed a motion for summary judgment without attaching affidavits in support of the motion. On the date of the hearing on the motion for summary judgment, appellants filed their reply to requests for admissions. Appellees, at the time of the hearing, filed and offered affidavits in support of their motion for summary judgment. Appellants objected to the affidavits upon the ground that they were not timely filed. Appellants' objections were overruled, the affidavits were allowed, filed, and considered by the court in granting summary judgment to appellees in the following sums:
$40,000.00 Principal
3,000.00 Interest to August 22,1982
1,123.40 Interest to March 16, 1983
4,000.00 Penalty
1,752.60 Attorneys fees and costs to March
15, 1983.
for a total judgment of $49,876.00.
The summary judgment also provided that additional attorneys fees and costs to be incurred in the future in the foreclosure and sale of the property would be allowed upon application to the court; and that if the amount claimed were disputed, said claim and dispute would be presented to the court for final determination.
The purpose of summary judgment is to dispose of suits before trial that present no genuine issue of material fact in a situation in which a party is entitled to judgment as a matter of law. Material facts may come before the court at any time in the form of pleadings, answers to interrogatories, depositions, and admissions, Rule 56(c), W.R.C.P. 2 , and be considered at the hearing upon motion for summary judgment. Material facts may also be presented in affidavit form. However, when affidavits are used, they must be served with the motion for summary judgment as required by Rule 6(d), W.R.C.P., supra fn. 1; or, if not served with the motion,
(a) the statutory period for filing may be enlarged if the request is made before
Page 1048
the expiration of the period originally prescribed; and(b) filing may be permitted, upon motion, after the expiration of the specified period, where the failure to act was the result of excusable neglect. Rule 6(b), W.R.C.P. 3
The record before us is brief. Examination of that record discloses that,
(a) The affidavits in support of the motion for summary judgment were not attached to the motion at...
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Nation v. Nation, No. 85-173
...cases are not determinative of the issue we now address, Harden v. Gregory Motors, Wyo., 697 P.2d 283 (1985); Larsen v. Roberts, Wyo., 676 P.2d 1046 (1984); DeHerrera v. Memorial Hospital of Carbon County, Wyo., 590 P.2d 1342 (1979), since no evidence of earlier service was involved. The di......
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Noonan v. Texaco, Inc., No. 84-300
...proving there exists no genuine issue of material fact and that it is entitled to judgment as a matter of law. Larsen v. Roberts, Wyo., 676 P.2d 1046 (1984); and Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979). We look at the record from the viewpoint most favorable to the party o......
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IN RE" H" CHILDREN
...Sandstrom v. Sandstrom, 884 P.2d 968, 971 (Wyo.1994); Matter of the Estate of Obra, 749 P.2d 272, 275 (Wyo.1988); and Larsen v. Roberts, 676 P.2d 1046, 1048 14. See, for example, In re LePage, 2001 WY 26, ¶ 11, 18 P.3d 1177, 1180 (Wyo.2001); State By and Through Dept. of Family Services v. ......
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Bettencourt v. Pride Well Service, Inc., No. 86-43
...of Converse County, Wyo., 697 P.2d 1040 (1985); O'Donnell v. City of Casper, Wyo., 696 P.2d 1278 (1985); and Larsen v. Roberts, Wyo., 676 P.2d 1046 In forming a decision with respect to the propriety of a summary judgment, the facts must be viewed in the light most favorable to the party op......
-
Nation v. Nation, No. 85-173
...cases are not determinative of the issue we now address, Harden v. Gregory Motors, Wyo., 697 P.2d 283 (1985); Larsen v. Roberts, Wyo., 676 P.2d 1046 (1984); DeHerrera v. Memorial Hospital of Carbon County, Wyo., 590 P.2d 1342 (1979), since no evidence of earlier service was involved. The di......
-
Noonan v. Texaco, Inc., No. 84-300
...proving there exists no genuine issue of material fact and that it is entitled to judgment as a matter of law. Larsen v. Roberts, Wyo., 676 P.2d 1046 (1984); and Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979). We look at the record from the viewpoint most favorable to the party o......
-
IN RE" H" CHILDREN
...Sandstrom v. Sandstrom, 884 P.2d 968, 971 (Wyo.1994); Matter of the Estate of Obra, 749 P.2d 272, 275 (Wyo.1988); and Larsen v. Roberts, 676 P.2d 1046, 1048 14. See, for example, In re LePage, 2001 WY 26, ¶ 11, 18 P.3d 1177, 1180 (Wyo.2001); State By and Through Dept. of Family Services v. ......
-
Bettencourt v. Pride Well Service, Inc., No. 86-43
...of Converse County, Wyo., 697 P.2d 1040 (1985); O'Donnell v. City of Casper, Wyo., 696 P.2d 1278 (1985); and Larsen v. Roberts, Wyo., 676 P.2d 1046 In forming a decision with respect to the propriety of a summary judgment, the facts must be viewed in the light most favorable to the party op......