Storz Brewing Co. v. Kuester

• Decision Date: 08 January 1965
• Docket Number: No. 35747,35747
• Citation: 132 N.W.2d 341,178 Neb. 135
• Parties: , 21 A.L.R.3d 476 STORZ BREWING COMPANY, a Corporation, Appellee, v. R. N. KUESTER, Appellant.
• Court: Nebraska Supreme Court

Page 341

132 N.W.2d 341

178 Neb. 135, 21 A.L.R.3d 476

STORZ BREWING COMPANY, a Corporation, Appellee, v. R. N. KUESTER, Appellant.

No. 35747.

Supreme Court of Nebraska.

Jan. 8, 1965.

Syllabus by the Court

1. Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasonable doubt touching the existence of a genuine issue of material fact must be resolved against the moving party.

2. A notary public who is an attorney of record in a pending suit is not a proper officer to take an affidavit to be used as evidence on a hearing in the cause.

Gerald B. Buechler, Grand Island, for appellant.

Fitzgerald, Brown, Leahy, McGill & Strom, Joseph J. Barmettler, Edgar R. Geesaman, Omaha, for appellee.

Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, and BROWER, JJ., and ROBERT L. SMITH and ROBERT L. FLORY, District Judges.

SPENCER, Justice.

This is an action brought by Storz Brewing Company, a corporation, hereinafter referred to as plaintiff, against R. N. Kuester, hereinafter referred to as defendant, on an unconditional guaranty of payment of any credit extended Ware R. Christenson for the purchase of merchandise. The trial court sustained plaintiff's motion for summary judgment, and defendant has perfected an appeal to this court.

The action was filed in the district court for Hall County on April 29, 1963. On September 24 defendant filed an answer in the form of a general denial and a request that the plaintiff be put on strict proof. On September 27 plaintiff filed requests for admissions. Defendant filed his responses and objections to plaintiff's request for admissions on October 8. As to the plaintiff's request for admissions of the correctness of the debits and credits shown on the account, defendant gave reasons why he could not deny or affirm their correctness. The objections were heard on October 11. The request for admissions as to the correctness of the debits and credits shown on the account were waived. The objections to the rest were overruled, and the defendant was given until October 21 to respond. No response was ever made. On November 4 plaintiff filed its motion for sumary judgment, supported by the affidavit of its credit manager. This motion was noticed for hearing on November 15 at 1:30 p. m. On that day, defendant, without leave of court, filed an amended answer out of time. At the time set, hearing was had on the motion for summary judgment. The bill of exceptions does not indicate any action of any nature on the amended answer. The defendant filed no affidavit and produced no evidence. The journal entry indicates that the amended answer was not considered by the court in the hearing on the summary judgment.

The defendant alleges six assignments of error. The only assignments we will consider pertain to the admission of evidence at the hearing and that the summary judgment entered is not sustained by sufficient evidence.

Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasoanble doubt touching the existence of a genuine issue of material fact must be resolved against the moving party. See Illian v. McMannaman, 156 Neb. 12, 54 N.W.2d 244. Section 25-1332, R.R.S.1943, requires the record before the court to show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The defendant assigns as error the overruling of his objection to admission of exhibits Nos. 1 through 16. Exhibits Nos. 1 through 15 are the purported ledger sheets showing the plaintiff's account with Ware R. Christenson, doing business as Grand Island Beer Company. Exhibit No. 16 is the affidavit of plaintiff's credit manager, which attempts to prove complaince with the requirements of section 25-12,109, R.R.S.1943, to have exhibits Nos. 1 through 15 admitted as plaintiff's business records. The affidavit is sworn to before the attorney of record for the plaintiff, who was the attorney offering it at the hearing on the motion. Defendant abjected to its introduction because of incompetency, no proper and sufficient foundation, and several other reasons not material herein.

It was the rule of common law that an affidavit taken before an attorney in a case could not be used in evidence if objected to. Collins v. Stewart, 16 Neb. 52, 20 N.W. 11. In 1887, the Legislature attempted to change this rule by amendment of section 118 of the Code of Civil Procedure (now section 25-829, R.R.S.1943), by adding: '* * * and nothing herein shall be construed to prohibit an attorney at law, who is a notary public from swearing a client to any pleading or other paper or affidavit in any proceeding of the courts of the state.' Laws 1887, c. 93, p. 646.

In Horkey v. Kendall, 53 Neb. 522, 73 N.W. 953, 68 Am.S.R. 623, this court held: 'The amendment of 1887 to section 118 of the Code, notwithstanding its general language, cannot be held to apply to affidavits, other than those verifying pleadings, without giving the amending act a construction which would render it violative of section 11, article 3, constitution.'

In Maroosis v. Catalano, 98 Neb. 284, 152 N.W. 559, this court said: 'A notary public who is an attorney of record in a pending suit is not a proper officer to take an affidavit to be used as evidence on a hearing in the cause.'

The affidavit, exhibit No. 16 was not a pleading, but was offered as evidence. It is the only evidence offered by plaintiff in an attempt to secure the admission of exhibits Nos. 1 through 15. It was not...