New and Used Auto Sales v. Hansen, 15117.
| Decision Date | 30 April 1957 |
| Docket Number | No. 15117.,15117. |
| Citation | 245 F.2d 951 |
| Parties | NEW and USED AUTO SALES, Inc., a Corporation, Appellant, v. Bernard L. HANSEN, also known as Barney Hansen, and Suzanne Hansen, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bell, Sanders & Tallman, Anchorage, Alaska, for appellant.
Burton Biss, Davis, Renfrew & Hughes, Anchorage, Alaska, for appellees.
Before BONE, FEE and BARNES, Circuit Judges.
In an action for replevin of a car, where the complaint was the sole pleading, the court granted judgment for $607.35 against plaintiff and in favor of defendant on a motion for summary judgment. Possession of the automobile was directed to be turned over to defendants, and by subsequent order plaintiff was directed to pay defendants $50.00, as attorney fees. Plaintiff Sales, Inc., appeals upon the ground that such an issue had never been developed and that the record showed there were material questions of fact in dispute.
The record is very much confused. Sales, Inc., on December 9, 1955, filed a complaint to replevy a Pontiac automobile in the possession of the Hansens. The Marshal took possession of the car upon the filing of the statutory affidavit. On December 20, 1955, no answer or other paper having been filed by them, the Hansens filed a motion for summary judgment, moving "the Court to enter Judgment for the defendant Hansens against the plaintiff Sales, Inc. in the amount of Six Hundred Seven and 35/100 Dollars ($607.35), plus interest and attorney's fees, and Order the automobile returned to the defendant."
Time was set for hearing of this motion thereby on December 23, 1955. Affidavits by both parties were filed, and the cause was argued on December 23 and 24, 1955. On January 6, 1956, the court entered a minute order granting motion for summary judgment. This minute order directed counsel "to appear at a later date for testimony as to the accuracy of the statement of plaintiff." Findings of fact, conclusions of law and proposed judgment were prepared. These were signed and entered January 26, 1956. Sales, Inc., filed objections thereto with an affidavit of its attorney. Argument was held on January 31, 1956. The court overruled the objections. Sales, Inc., then filed a "Motion for New Trial and to set aside Judgment and to Strike." This motion was denied on February 3, 1956, and the court further ordered "that the plaintiff pay to the defendants the sum of Fifty Dollars ($50.00) for attorney's fees herein."
The trial court here attempted to use summary judgment procedure to supply the place of pleadings and of trial. The efficiency of this device to eliminate from congested trial dockets cases in which there is no substantial dispute of fact is not denied, nor could it be. But this circumstance cannot be used as an excuse to hear and determine causes which are not before the court by pleading or otherwise.
The statute under which this judgment purports to be granted gives an independent cause of action for damages to the buyer who is injured by specific acts of the seller.1 If the seller had not already brought the replevin action, the buyer would have been required to file a complaint setting up his claim for damages. Since the seller had already filed a complaint, it might have been possible, if the facts were entirely uncontroverted, to have had the court enter a judgment dismissing the complaint and for return of the car. The merits of this disposition will be discussed later. But the only manner in which the defendant could have affirmative relief would have been to have filed his claim therefor in the then pending action as a counterclaim.
There was no method whereby he could obtain affirmative relief otherwise. The attempt to grant relief which was not warranted by the allegations of the sole pleading on file was abortive. The language of Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., makes it plain that this conclusion is correct:
Clearly, the defending party here, the Hansens, could only move for summary judgment as to all or any part of the claim contained in the complaint on file in the court. On the other hand, if Hansen wished to seek summary judgment for affirmative relief, he must necessarily have filed a pleading stating a claim either in an independent action or in the action commenced by the complaint of Sales, Inc. For the Rule in this regard provides:
Here defendant moved for summary judgment upon what could only have been a counterclaim without even filing a pleading setting up that counterclaim as required by Rule 13(a). The summary judgment on the unfiled counterclaim was void.
Furthermore, Rule 56(c) provides in part:
"The motion shall be served at least 10 days before the time fixed for the hearing."
The irregularity of setting the motion for hearing only three days after its service is an aggravating factor to the failure to serve a counterclaim, but this circumstance might not alone be decisive. It emphasizes the fact that no regard was paid by the litigants to the very simple procedure prescribed by the Rules. Judgments should not be avoided on technicalities, but here Sales, Inc., was denied the right to trial by jury upon the complaint and the unfiled counterclaim.
In the summary judgment, the court does not recite that "there is no genuine issue as...
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Fromberg, Inc. v. Gross Manufacturing Company
...that there is such a technical rule started with an impatient statement of Judge Fee, citing no authority, in New and Used Auto Sales v. Hansen, 9 Cir., 1957, 245 F.2d 951, a case in which this court found that there were genuine issues to be tried. There is similar, but somewhat weaker, la......
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Atlas Chemical Industries, Inc. v. Moraine Products
...8.13 at 1695. (Footnote omitted.) It is elementary that proper pleadings are a prerequisite to recovery. New & Used Auto Sales, Inc. v. Hansen, 245 F.2d 951 (9th Cir. 1957); See Armstrong Cork Co. v. Lyons, 366 F.2d 206 (8th Cir. Since these damages were never pleaded they cannot be recover......
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...finding was made that there were no other material facts in issue which were not specifically found upon. See New & Used Auto Sales, Inc. v. Hansen, 9 Cir., 1957, 245 F.2d 951, 953; Sequoia Union High School Dist. v. United States, 9 Cir., 1957, 245 F.2d 227. See also, Byrnes v. Mutual Life......
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Capitol Hill Methodist Church of Seattle v. City of Seattle
...v. Sandia Corp., 10 Cir., 1957, 246 F.2d 758; Cox v. English-American Underwriters, 9 Cir., 1957, 245 F.2d 330; New & Used Auto Sales, Inc., v. Hansen, 9 Cir., 1957, 245 F.2d 951; Sequoia Union High School Dist. v. United States, 9 Cir., 1957, 245 F.2d 227; Federal Rule of Civil Procedure 5......