Prey v. Allard

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtROSENBERRY
Citation239 Wis. 151,300 N.W. 13
Decision Date02 December 1941
PartiesPREY et al. v. ALLARD et al.

239 Wis. 151
300 N.W. 13

PREY et al.
v.
ALLARD et al.

Supreme Court of Wisconsin.

Oct. 7, 1941.
Rehearing Denied Dec. 2, 1941.


Appeal from a judgment of the Circuit Court for Lincoln county; George J. Leicht, Circuit Judge.

Affirmed.

This action was begun in August, 1939, by Charles Prey and Walter Prey, plaintiffs and appellants, against Eugene Allard, Christina Allard, Herman Leverance and Harry D. Myers, defendants and respondents, in which the plaintiffs sought the following relief: (1st) a declaration that the judgment pronounced by the defendant, Harry D. Myers, a justice of the peace, was void and of no force or effect; (2d) an order restraining the defendants from doing certain things; and (3d) for damages in the total sum of $4,237. The defendants answered and upon affidavits moved for summary judgment. The motion was granted and judgment was entered in favor of the defendants on June 29, 1940. From the summary judgment the plaintiffs appeal.

[300 N.W. 14]

E. C. Smith, of Tomahawk, for appellant.

Frank E. Hebert, of Tomahawk, for respondent.


ROSENBERRY, Chief Justice.

[1] Neither counsel cited the case of Unmack v. McGovern, 1941, 236 Wis. 639, 296 N.W. 66 in which it was distinctly held that the motion for summary judgment did not lie except in one of the classes of actions enumerated in section 270.635 (1), Wisconsin Stats. It is clear as counsel concede that this action does not fall within the statutory classification. Counsel for the defendants, however, sought to sustain the judgment under subsection (2), which provides:

“The judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, as shall, if the motion is by the plaintiff, establish his cause of action [etc.]”

Counsel read into subsection (2) the general provision of subsection (1), “Summary judgment may be entered as provided in this section in an action” and contends that subsection (2) applies to any action. It is clear, however, that motions for summary judgments are limited to the classes of actions enumerated in subsection (1) and subsection (2) does not enlarge that classification.

Section 270.635(1) was amended by rule to provide:

[2][3] “Summary judgment may be entered as provided in this section in any civil action or special proceeding” striking out the classifications theretofore set out in the statute. However, this amendment did...

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1 practice notes
  • Farrell v. Cootway (In re Farmers & Traders Bank of Wrightstown)
    • United States
    • United States State Supreme Court of Wisconsin
    • February 15, 1944
    ...the proposition that a judgment creates a vested right, and vested rights can not be taken away by a statute. The case of Prey v. Allard, 239 Wis. 151, 300 N.W. 13, also dealing with an amendment of the summary judgment statute, recognizes the rule of the Barr and Palmer cases. It is said, ......
1 cases
  • Farrell v. Cootway (In re Farmers & Traders Bank of Wrightstown)
    • United States
    • United States State Supreme Court of Wisconsin
    • February 15, 1944
    ...the proposition that a judgment creates a vested right, and vested rights can not be taken away by a statute. The case of Prey v. Allard, 239 Wis. 151, 300 N.W. 13, also dealing with an amendment of the summary judgment statute, recognizes the rule of the Barr and Palmer cases. It is said, ......

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