Marco v. Whiting
| Decision Date | 15 February 1944 |
| Citation | 244 Wis. 621,12 N.W.2d 926 |
| Parties | MARCO v. WHITING. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Winnebago County; Alfred L. Drury, Judge.
Affirmed.
Action for damages by Gladys M. Marco against Frank B. Whiting. A motion for summary judgment was granted in favor of the defendant and the complaint was dismissed. Plaintiff appeals.
This is an appeal from a summary judgment. The action was for damages claimed to have been suffered by plaintiff in entering into a contract under compulsion by reason of wrongful acts and conduct of the defendant. The defendant answered that the contract under attack was fairly and legitimately negotiated, there being in existence at the time an actual dispute between the parties; and the agreement in settlement was freely and voluntarily entered into by the plaintiff.
Eugene S. Colburn, of Chicago, Ill. (R. C. Laus, of Oshkosh, John E. O'Brien, of Fond du Lac, and Leslie L. Lyons, of Chicago, Ill., of counsel), for appellant.
Bouck, Hilton & Dempsey, of Oshkosh, and Bendinger, Hayes & Kluwin, of Milwaukee, for respondent.
The court below, on undisputed and indisputable facts, reached the opinion that appellant at the time she signed the releases was not under duress and that she acted as she did for other reasons and on sufficient consideration in accepting the settlement of the matter in dispute.
In this case, the evidence placed before the circuit court on the motion for summary judgment was such that a verdict in plaintiff's favor based on it could not be permitted to stand. The evidence is such that no conceivable facts can exist to warrant further consideration of the matter. The summary judgment is recognized as a drastic procedure and one not to be availed of except when it is apparent that there is no substantial issue to be tried. However, when a thorough consideration is made of the uncontroverted facts brought forth and it appears that such facts if established on a trial would impel a direction of a verdict by the court, no issue exists and an entry of summary judgment is properly made. Prime Mfg. Co. v. A. F. Gallun & Sons Corporation, 229 Wis. 348, 281 N.W. 697;Petrie v. Roberts, 242 Wis. 539, 8 N.W.2d 355.
Appellant has retained the benefits of the settlement including the advantage of the dismissal of an action which respondent had begun against her as well as the case begun by respondent's children. We note, without making any...
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Federal Deposit Ins. Corp. v. First Mortg. Investors
...issue of fact to be tried. 3 Prime Mfg. Co. v. A. F. Gallun & Sons Corp., 229 Wis. 348, 281 N.W. 697 (1938); Marco v. Whiting, 244 Wis. 621, 12 N.W.2d 926 (1944); Foryan v. Firemen's Fund Ins. Co., 27 Wis.2d 133, 133 N.W.2d 724 (1965). When there are substantial issues of fact to be determi......
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Weber v. City of Hurley
... ... Marco v. Whiting, 1944, 244 Wis. 621, 12 N.W.2d 926 ... The rule is well established that: ... '* * * upon a motion for summary judgment ... ...
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Welch v. Corrigan
...after all the evidence is in the court will have to direct a verdict, a motion for summary judgment should be granted. Marco v. Whiting, 1944, 244 Wis. 621, 12 N.W.2d 926 and cases cited therein. Even if the jury should find, as the majority opinion indicates they might, that the defendant ......
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Milwaukee County v. Milwaukee Yacht Club
...be determined upon motions for summary judgment. Prime Mfg. Co. v. A. F. Gallun & Sons Corp., 229 Wis. 348, 281 N.W. 697; Marco v. Whiting, 244 Wis. 621, 12 N.W.2d 926. Several issues of law, the answers to which might dispose of this matter, are presented. But they are debatable and should......