Sump v. City of Sheridan, No. 2963

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtHARNSBERGER
Citation358 P.2d 637
PartiesDonald F. SUMP, Appellant (Plaintiff below), v. CITY OF SHERIDAN, Wyoming, a Municipal Corporation, Appellee (Defendant below).
Decision Date17 January 1961
Docket NumberNo. 2963

Page 637

358 P.2d 637
Donald F. SUMP, Appellant (Plaintiff below),
v.
CITY OF SHERIDAN, Wyoming, a Municipal Corporation, Appellee (Defendant below).
No. 2963.
Supreme Court of Wyoming.
Jan. 17, 1961.
Rehearing Denied Feb. 21, 1961.
See 359 P.2d 1008.

Lonabaugh & Lonabaugh, E. E. Lonabaugh, Sheridan, for appellant.

Bruce P. Badley, City Atty. and R. G. Diefenderfer, Sheridan, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiff's complaint alleged he was a citizen, resident, property owner and taxpayer of the City of Sheridan, Wyoming; that defendant was 'expending, and * * * will continue to expend, money, unlawfully for the acquisition of easements, employment of persons to obtain easements and the survey of lands in the City of Sheridan, and adjacent thereto, for the purported purpose of controlling floods' and 'unless said defendant is enjoined from

Page 638

committing such acts, * * * this petitioner will sustain an irreperable (sic) injury and damages, both financially and to his property'; that he 'has no adequate remedy at law' and prayed defendant be enjoined from so spending money.

Defendant filed a motion to dismiss under the provisions of Rule 12(b)(6) of the Wyoming Rules of Civil Procedure, which in applicable part is as follows:

'Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * *.'

Plaintiff moved to strike defendant's motion. Although this motion was not ruled upon at the time, the judgment of dismissal found that it should be denied.

No other pleading, deposition, admission or affidavit was filed with defendant's motion to dismiss, but, some ten days after the motion was made, defendant filed an affidavit of the president of its Town Council, to which were appended certain resolutions, other data, and city ordinances. Seventeen days after defendant's motion was filed, the plaintiff filed two affidavits, one his own and the other that of a lady, and the defendant filed a further affidavit. On the day of these last filings, a hearing was had, following which the court entered judgment dismissing the complaint. The salient portions of that judgment are as follows:

'* * * and the Court considering the Motion to Dismiss filed by the City of Sheridan as a Motion for Summary Judgment and the Court having considered all of the Affidavits and related matters filed in addition to the pleadings and having heard the arguments of Counsel with respect to the law thereto and being fully informed in the premises finds:

'1.

'That the Plaintiff's Motion to strike Defendant's Motion to Dismiss and for Special Findings should be overruled.

'2.

'That the City is lawfully and legally at this time from the evidence presented at this hearing expending and will continue to expend money for the acquisition of easements, employment of persons, and survey of lands in the City of Sheridan as directed by the duly authorized and elected City Council of the City of Sheridan for flood control purposes.

'3.

'That the City Council of the City of Sheridan has authority to spend City funds for flood control purposes on Big Goose Creek and Little Goose Creek.

'4.

'That the Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted should be sustained.

'It Is Therefore Hereby Ordered, Adjudged And Decreed by the Court that Plaintiff's Complaint be and the same is hereby dismissed.' (Emphasis supplied.)

From this judgment dismissing the complaint, plaintiff appeals, claiming:

'1. The trial court erred in considering the [defendant's] motion to dismiss as a motion for summary judgment without giving the appellant an opportunity to submit affidavits and extraneous proofs as required by Rule 12(b) and Rule 56(c) of the Wyoming Rules of Civil Procedure.

'2. The affidavits filed on behalf of the appellee indicate illegal expenditures by the City, are self-contradictory, and not in accord with Rule 56(e) in that they fail to set forth such facts as would be admissible in evidence.

Page 639

'3. The complaint states a claim upon which relief can be granted and the appellee's motion to dismiss should have been overruled.

'4. The affidavits of Donald F. Sump and Madge I. Brown raise a question of fact which is controverted in the affidavits filed on behalf of the appellee, and the granting of summary judgment was, therefore, improper.

'5. If the appellate court becomes convinced that the appellant, although acting in good faith, has failed to raise at the trial court level a genuine factual issue, it should make such disposition of the appeal as will permit him to do so.

'6. The broad findings of the trial court are unwarranted conclusions exceeding the scope of the inquiry and are unsupported by competent and uncontroverted evidence.

'7. Summary judgment is seldom appropriate in cases of this nature, involving a public issue.

'8. The expenditures of the City appear to be in violation of the Constitution of the State of Wyoming.'

Applicable portions of the Wyoming Rules of Civil Procedure claimed by appellant to have been violated are as follows:

Rule 12(b).

'* * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.'

Rule 56(c).

'The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

Rule 56(e).

'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

By filing its motion to dismiss the defendant admitted, for the purposes of the motion, that it was expending money to acquire easements and to make surveys for the purpose of controlling floods, but defendant did not admit that in so doing it was acting in an unlawful manner.

Although defendant's...

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12 practice notes
  • William F. West Ranch, LLC v. Tyrrell, No. S-08-0161.
    • United States
    • United States State Supreme Court of Wyoming
    • May 7, 2009
    ...omission of that which is material and necessary in order to entitle [one to] relief.'" Id. at 790, quoting Sump v. City of Sheridan, 358 P.2d 637, 642 1. Jurisdiction a. Uniform Declaratory Judgments Act [¶ 10] Our starting place for determining jurisdiction is the Uniform Declaratory Judg......
  • Elworthy v. First Tenn. Bank, S-16-0165
    • United States
    • United States State Supreme Court of Wyoming
    • March 17, 2017
    ...does not go so far as to excuse omission of that which is material and necessary in order to entitle relief." Sump v. City of Sheridan , 358 P.2d 637, 642 (Wyo. 1961). [¶38] We agree with the district court's reasoning. We have held that "[w]hen the complaint shows the existence of a built-......
  • Jackson State Bank v. Homar, No. 91-134
    • United States
    • United States State Supreme Court of Wyoming
    • August 28, 1992
    ...be liberally construed to ensure substantial justice. Harris v. Grizzle, 599 P.2d 580, 583 (Wyo.1979) (citing Sump v. City of Sheridan, 358 P.2d 637, 641-43 (Wyo.1961)). Arbitration is strongly embedded in the public policy of this state and is favored by this court as a voluntary method to......
  • Centric Corp. v. Drake Bldg. Corp., No. 85-50
    • United States
    • United States State Supreme Court of Wyoming
    • October 17, 1986
    ...as to do substantial justice" and we have held that pleadings are to be liberally construed to do justice. Sump v. City of Sheridan, Wyo., 358 P.2d 637, reh. denied, 359 P.2d 1008 (1961); Johnson v. Aetna Casualty & Surety Company of Hartford, Connecticut, Wyo., 608 P.2d 1299, 1302 This cou......
  • Request a trial to view additional results
12 cases
  • William F. West Ranch, LLC v. Tyrrell, No. S-08-0161.
    • United States
    • United States State Supreme Court of Wyoming
    • May 7, 2009
    ...omission of that which is material and necessary in order to entitle [one to] relief.'" Id. at 790, quoting Sump v. City of Sheridan, 358 P.2d 637, 642 1. Jurisdiction a. Uniform Declaratory Judgments Act [¶ 10] Our starting place for determining jurisdiction is the Uniform Declaratory Judg......
  • Elworthy v. First Tenn. Bank, S-16-0165
    • United States
    • United States State Supreme Court of Wyoming
    • March 17, 2017
    ...does not go so far as to excuse omission of that which is material and necessary in order to entitle relief." Sump v. City of Sheridan , 358 P.2d 637, 642 (Wyo. 1961). [¶38] We agree with the district court's reasoning. We have held that "[w]hen the complaint shows the existence of a built-......
  • Jackson State Bank v. Homar, No. 91-134
    • United States
    • United States State Supreme Court of Wyoming
    • August 28, 1992
    ...be liberally construed to ensure substantial justice. Harris v. Grizzle, 599 P.2d 580, 583 (Wyo.1979) (citing Sump v. City of Sheridan, 358 P.2d 637, 641-43 (Wyo.1961)). Arbitration is strongly embedded in the public policy of this state and is favored by this court as a voluntary method to......
  • Centric Corp. v. Drake Bldg. Corp., No. 85-50
    • United States
    • United States State Supreme Court of Wyoming
    • October 17, 1986
    ...as to do substantial justice" and we have held that pleadings are to be liberally construed to do justice. Sump v. City of Sheridan, Wyo., 358 P.2d 637, reh. denied, 359 P.2d 1008 (1961); Johnson v. Aetna Casualty & Surety Company of Hartford, Connecticut, Wyo., 608 P.2d 1299, 1302 This cou......
  • Request a trial to view additional results

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