Schandelmeier v. Brown

• Decision Date: 30 January 1968
• Citation: 155 N.W.2d 659,37 Wis.2d 656
• Parties: Dorothy SCHANDELMEIER and Joseph Schandelmeier, Plaintiff-Respondents, v. George I. BROWN and Agnes Brown, his wife, Defendant-Appellants.
• Court: Wisconsin Supreme Court

Page 659

155 N.W.2d 659

37 Wis.2d 656

Dorothy SCHANDELMEIER and Joseph Schandelmeier, Plaintiff-Respondents, v. George I. BROWN and Agnes Brown, his wife, Defendant-Appellants.

Supreme Court of Wisconsin.

Jan. 30, 1968.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for appellants.

Hanley, Wedemeyer & Cavanaugh, Milwaukee, for respondents.

HALLOWS, Chief Justice.

This is one of seven appeals out of 28 heard this assignment involving a motion for summary judgment. Lately the court has noticed an increase in appeals from orders denying summary judgment and is concerned. Perhaps the remedy of summary judgment is misunderstood as some kind of a short cut to avoid a trial and to obtain quick relief at the expense of a searching determination for the truth. The remedy of summary judgment does not lend itself to many types of cases, especially those which are basically factual and depend to a large extent upon oral testimony. Then, too, in a great number of cases the statute has not been complied with and affidavits have been made by attorneys and others who obviously do not have personal knowledge of the facts. Frequently, the opposition does not take the motion seriously and the record before us is so sketchy that justice demands a denial of the motion.

Recently, in Leszczynski v. Surges (1966), 30 Wis.2d 534, 141 N.W.2d 261, we stated at pp. 537--538, 141 N.W.2d at p. 264.

'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's 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."

Basically, the purpose of the remedy of summary judgment was to prevent sham pleadings and delay. It was not to take the place of a demurrer, motion for judgment on the pleadings, or of a trial. Many times we have said it is a drastic remedy and not a trial on affidavits. In fact, sec. 270.635, Stats., expressly provides the party opposing the motion need only show by affidavit or other proof facts which the court deems sufficient to entitle him to a trial. How facts in an affidavit generally prepared in the language of counsel and not tested by the searchlight of cross examination can become something else at a trial is well illustrated in a case which was appealed to this court first upon a denial for summary judgment and later after a trial of the merits. See Becker v. City of La Crosse (1960), 9 Wis.2d 540, 101 N.W.2d 677; (1961), 13 Wis.2d 542, 109 N.W.2d 102.

The complaint in the instant case alleges Mrs. Schandelmeier was an invited guest, was unfamiliar with the defendant...