Temme v. Traxel

• Decision Date: 21 March 1960
• Docket Number: No. 7796,7796
• Parties: L. F. TEMME, as administrator over the estate of Beata Traxel, aka Beatha Traxel, Plaintiff and Respondent, v. Robert TRAXEL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 1

102 N.W.2d 1

L. F. TEMME, as administrator over the estate of Beata

Traxel, aka Beatha Traxel, Plaintiff and Respondent, v. Robert TRAXEL, Defendant and Appellant.

No. 7796.

Supreme Court of North Dakota.

March 21, 1960.

Syllabus by the Court

1. Under Rule 56(c), North Dakota Rules of Civil Procedure, the moving party is entitled to a summary judgment if it appears that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

2. One who moves for a summary judgment has the burden of demonstrating clearly that there is no genuine issue of fact. The evidence presented at a hearing on such a motion must be construed in favor of the party opposing the motion who will be given the benefit of all favorable inferences which may reasonably be drawn from the evidence, that indicate the presence of a genuine issue of fact.

3. Where the pleadings indicate that there are issues of fact to be tried which are not determined by testimony elicited by defendant's cross-examination by deposition taken before the court in a pending action under the provisions of Rule 26, North Dakota Rules of Civil Procedure, it is error for the court at the close of the deposition to entertain and grant a motion for judgment on the testimony taken and such motion will not be considered as a motion for summary judgment where no notice is given and no opportunity afforded to the defendant to explain his testimony or make a counter-showing.

Floyd B. Sperry, Bismarck, for plaintiff and respondent.

Sailer & Richardson, Hazen, for defendant and appellant.

PER CURIAM.

The plaintiff is the administrator of the estate of Beata Traxel, deceased, and brings this action in his official capacity to recover the sum of $2,000 with lawful interest from the defendant under these allegations:

'That the defendant received into his possession certain properties belonging to said estate, after the death of the decedent, the same consisting of United States government bonds described as follows:

                M6997566G  Nov. 3, 1949  $1,000.00
                M7000568G  Dec. 6, 1949  $1,000.00
                

'That thereafter the defendant converted said bonds into cash, having agreed to distribute the proceeds among said heirs, and which monies the defendant now retains and refuses to surrender, though repeated demands have been made therefor, each of said heirs being entitled a respective share therein, upon the completion of the administration of said estate.'

The defendant answered, admitting the appointment of plaintiff as administrator and denying all of the other allegations of the complaint. The case was at issue on the trial calendar for the June 1958 term of the District Court of Mercer County, Honorable Harvey J. Miller presiding. On June 23, 1958, the parties, through their respective attorneys, appeared before Judge Miller in Dickinson, Stark County, North Dakota, where the proceedings resulting in this appeal were had. The attorney for plaintiff addressed the court as follows:

'Your honor, counsel in this case have agreed that the defendant may be examined at this time, and that his deposition be taken for use in the trial of the case when it is reached for trial, * * *'.

After stating, 'I think that the procedure comes within Rule 26 of the new set of rules,' he asked that the defendant, Robert Traxel, be sworn. The attorney for defendant then stated that he believed the plaintiff had a right to call the defendant prior to the trial and attorney for the plaintiff said:

'That's right, that is the effect, as you say. To examine any party, any time in advance of the trial and it would be cross-examination under the statutes.'

After the defendant was sworn plaintiff's attorney cross-examined him. The defendant stated that he had three sisters and two brothers. When Beata Traxel died she had two $1,000 government bonds and one $500 bond. They were bought for her with her money by the defendant. He had them in his possession when she died. The defendant cashed the bonds. The proceeds of the $500 bond were used to pay the funeral expenses of the deceased. The other $2,000 was retained by the defendant.

There is no controversy regarding the $500 bond. The funds in issue are the proceeds of the other two bonds. Further testimony of the defendant concerning these funds is as follows:

'Q. Now, isn't it a fact that you told your sister Sofia Boeshans, in the presence of her husband, Fred Boeshans, at this time, that you would divide that bond money up with the other children? A. Well, if we could get to an agreement, yes.

'Q. What agreement did you tell them that you wanted? A. I wanted it so that they all get the same share out it, the other two and the other four of us.

'Q. Well, there were six of you? A. Six all together, yes.

'Q. And, you wanted the money from the bonds divided so that each one of the six would receive an equal share, is that right? A. Yes.

'Q. Well, they--nobody objected to that, did they? A. Well, I didn't get no answer yet.

'Q. You are still willing to do that, isn't that right? A. Well, I don't know, I just as soon have this thing settled as soon as possible.

'Q. Why didn't you ever distribute that money in that manner? A. That is the time when they started fighting me.

'Q. Well, in what way were they fighting you? A. Well, they said I couldn't claim those bonds, the bonds weren't mine and they would have to be put in the estate.

'Q. I beg your pardon? A. Told me the bonds weren't mine. I would have to get them in the estate to divide them. * * *

'Q. And, you don't deny that you agreed, at that time that you had that conversation, that you were willing to divide the money from those two...