Unmack v. McGovern

Citation296 N.W. 66,236 Wis. 639
PartiesUNMACK et al. v. McGOVERN et al.
Decision Date04 February 1941
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from an order of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Judge.

Action by Mandy Unmack and others against Francis E. McGovern and others, to recover money deposited in escrow. From an order denying motion of named defendant and another for summary judgment, named defendant and another appeal.-[By Editorial Staff.]

Affirmed.

This action was begun on July 27, 1938, by Mandy Unmack and twenty-three other plaintiffs against Francis E. McGovern, Henry Ernst, Sr., George Schuh, George Sullivan, Joseph Lemay, H. E. Struck, Jake Shorter, Eric E. Buntrock and Hartley B. Hutchison, defendants, to recover certain sums of money alleged by the plaintiffs to have been deposited with the Union Cooperative Shoe Association, a Wisconsin corporation, to be held in escrow until the full sum of $15,000 should have been paid in; that the corporate officers in violation of the understanding and agreement caused said funds to be disbursed for corporate purposes. Plaintiffs seek to recover the amounts deposited by them from the defendants, among whom are the defendants, Francis E. McGovern and H. E. Struck.

The defendants McGovern and Struck answered denying the allegations of the complaint, setting out in great detail the facts connected with the transactions set out in the plaintiffs' complaint. The defendants McGovern and Struck upon supplementary affidavits moved the court for summary judgment. The court denied the motion for summary judgment, being of the view that the allegations of the amended complaint, which were repeated in plaintiffs' affidavits in opposition to motion for judgment, considered in connection with the allegations of the denial of moving defendants, presented substantial issues of fact which required a trial of the action.John J. Devos and Thomas E. Leahy, both of Milwaukee, for appellants.

Norman L. Miswald, of Milwaukee, for respondents.

ROSENBERRY, Chief Justice.

The motion for summary judgment in this case was made pursuant to sec. 270.635, Wisconsin stats., which is as follows:

“Summary judgments. (1) Summary judgment may be entered as provided in this section in an action (a) To recover a debt or demand arising on a contract, express or implied (other than for breach of promise to marry); or ***

(2) The judgment may be entered in favor of either party, on motion,” etc.

While seven classes of action are enumerated in which the motion may be made, subsec. (1) (a) is the only one which could possibly have any application to the facts set out in this complaint. The defendants, in their brief in stating the nature of the action, say: Plaintiffs herein, as creditors of Union Cooperative Shoe Association, and as beneficiaries under a chattel mortgage covering the assets of the corporation, bring this action...

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4 cases
  • Hanson v. Halvorson
    • United States
    • Wisconsin Supreme Court
    • 16 Octubre 1945
    ...6 N.W.2d 667;McLoughlin v. Malnar, 237 Wis. 492, 297 N.W. 370;Atlas Investment Co. v. Christ, 240 Wis. 114, 2 N.W.2d 714;Unmack v. McGovern, 236 Wis. 639, 296 N.W. 66;City of Milwaukee v. Heyer, 241 Wis. 56, 4 N.W.2d 126;Frank v. Schroeder, 239 Wis. 159, 300 N.W. 254;Sullivan v. State, 213 ......
  • Bryngelson v. State Bd. of Control (In re Bryngelson's Estate)
    • United States
    • Wisconsin Supreme Court
    • 4 Febrero 1941
  • Nick v. Am. Lumber & Mfg. Co.
    • United States
    • Wisconsin Supreme Court
    • 15 Abril 1941
  • Prey v. Allard
    • United States
    • Wisconsin Supreme Court
    • 2 Diciembre 1941
    ...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 ......
1 books & journal articles
  • Is Administrative Summary Judgment Unlawful?
    • United States
    • Harvard Journal of Law & Public Policy Vol. 44 No. 1, January 2021
    • 1 Enero 2021
    ...to recover money by action on any contract may, on motion ... obtain judgment for such money. ..."). (140.) See Unmack v. McGovern, 296 N.W. 66, 67 (Wis. 1941) (quoting sec. 270.635, Wisconsin stats.: "Summary judgment may be entered as provided in this section in an action (a) To recover a......

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