Leszczynski v. Surges

Decision Date12 April 1966
Citation141 N.W.2d 261,30 Wis.2d 534
PartiesCelia LESZCZYNSKI, Plaintiff-Appellant, v. Francis J. SURGES and Marie O. Surges, his wife, Defendants-Respondents.
CourtWisconsin Supreme Court

Lichtsinn, Dede, Anderson & Ryan, Milwaukee, for appellant.

Eisenberg & Kletzke, Milwaukee, Ralph Lessing, Milwaukee, of counsel, for respondents.

HALLOWS, Justice.

We conclude the trial court was correct in denying summary judgment although we reach that result on slightly different grounds.

From the complaint we learn that in 1929 Stanley L. Krzysko owned eight lots, four of which fronted on South 43rd Street and four on South 44th Street in the city of Milwaukee. The back boundaries of these lots were common. These lots and the sunken garden are shown in the diagram. On August 12, 1929, Krzysko conveyed to John Leszczynski and his wife Setryda lots 22, 23, 8, and 9. Setryda was a sister of Mrs. Krzysko. After Setryda Leszczynski's death in 1933, John Leszczynski married the plaintiff Celia Leszczynski who became the sole owner of these lots upon Mr. Leszczynski's death on October 27, 1949.

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The defendants, who are not the owners of lots 24, 25, 6, and 7, trace their title to Kryzsko by the purchase of the lots from his estate on December 17, 1954. The plaintiff in her complaint claims title and ownership to all of lot 8 although part of a sunken garden is located thereon. It is alleged in the complaint that while Krzysko was the owner of the lots he improved them without regard to boundaries and after the conveyance to the plaintiff's predecessors, the Leszczynskis, the parties did not construct any fence between the premises owned by them respectively 'but, without particular regard to any particular boundary line used the rear vacant portions thereof for their own mutual advantage, including the construction and improvement of the same by a sunken garden mainly located on lot 7 but extending partially into lot 8.'

The complaint also alleges that any use by the defendants and their predecessor in title was a permissive use of lot 8. The affidavit in support of the complaint repeats almost verbatim the allegations of the complaint and in addition states it was not until October, 1964, that defendants put a low chicken wire fence around the sunken garden; sometime after the defendants purchased the property they repaired a gate which provided joint access to both lot 7 and lot 8 on a common and nonexclusive basis and gave the plaintiff a key; and neither party had established the lot line or knew exactly the location of their lot line.

The answer creates an apparent issue of fact by alleging that the defendants' possession of that part of lot 8 occupied by the sunken garden was exclusive and they held such possession adversely to the plaintiff and her predecessors. It is alleged the defendants and their grantor cultivated, maintained and improved the entire sunken garden and the plaintiff and her predecessors were not in possession of that part of lot 8 for 20 years before this action was commenced. The answer also claims the plaintiff is barred by the doctrine of laches. No. affidavit was submitted in support of the answer and while this is a dangerous procedure by a defendant confronted with a motion by the plaintiff for summary judgment, in this case it has no disastrous effect.

Perhaps no one section of the statutes has been the subject of so much litigation as sec. 270.635 on summary judgments. In McWhorter v. Employers Mut. Casualty Co. (1965), 28 Wis.2d 275, on p. 277, 137 N.W.2d 49, we stated:

'The rules governing summary judgments are well known and have been frequently stated and explained by this court. Under the rule of Hyland Hall & Co. v. Madison G. & E. 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 examined the moving papers and documents to determine whether the moving party has made a prima facie case for summary judgment under sec. 270.635(2), Stats., and if he has, we then examine the opposing party' 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 material facts are not in dispute and if the inferences which may reasonably be drawn from the facts are not doubtful and lead only to one conclusion, then only a matter of law is presented which should be decided upon the motion. Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis.2d 545, 105 N.W.2d 807; Bond v. Harrel (1961), 13 Wis.2d 369, 108 N.W.2d 552, 98 A.L.R.2d 330.'

To entitle one to summary judgment, sec. 270.635 provides the motion must be supported by an affidavit of a person who has knowledge of the facts. Such affidavit must set forth sufficient evidentiary facts including documents or copies thereof as shall, if the motion is made by the plaintiff, establish his cause of action and entitle him to judgment. Likewise, if the motion is made by the defendant, such evidentiary facts must show the defense is sufficient to defeat the plaintiff.

Because of this requirement we have held that affidavits made by persons who do not have personal knowledge are insufficient and will be disregarded, and that affidavits made on information and belief are insufficient as they do not reach the stature of establishing evidentiary facts, and affidavits containing ultimate facts are ineffectual. 1 We have pointed out the requirement of the statute that evidentiary facts be stated in an affidavit calls for such evidence by the affiant as would be admissible on the trial. Unless the motion is supported by such facts in the affidavit or by documents, the plaintiff's cause of action is not sufficiently established to entitle him to summary judgment.

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  • L.L.N. v. Clauder
    • United States
    • Wisconsin Supreme Court
    • May 23, 1997
    ...to prove the opposing party's case, but must be substantial and raise genuine issues of material fact. See Leszczynski v. Surges, 30 Wis.2d 534, 539, 141 N.W.2d 261 (1966). ¶15 Therefore, in order to be entitled to summary judgment, the moving party must prove that "there is no genuine issu......
  • Lambrecht v. Estate of Kaczmarczyk
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    • March 23, 2001
    ...101 Wis. 2d 460, 470, 304 N.W.2d 752 (1981); Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980); Leszczynski v. Surges, 30 Wis. 2d 534, 539, 141 N.W.2d 261 (1966). 11. Grams, 97 Wis. 2d at 338. 12. L.L.N., 209 Wis. 2d at 684. 13. Id. 14. The supreme court determined that the res i......
  • Physicians Plus Ins. v. Midwest Mut. Ins.
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    • June 28, 2001
    ...from a court's consideration on summary judgment purported "facts" that would not be admissible at trial. See Leszczynski v. Surges, 30 Wis. 2d 534, 538-39, 141 N.W.2d 261 (1966) (nothing that affidavits in support of summary judgment must contain "evidentiary facts ... [which means] eviden......
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    ...material fact concerning whether the death certificate Pozner released is a fake, forgery, or fabrication. See Leszczynski v. Surges , 30 Wis. 2d 534, 539, 141 N.W.2d 261 (1966) ("To defeat [a] motion [for summary judgment], the statute requires the opposing party by affidavit or other proo......
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