Summary
In Snowberry v. Zellmer, 22 Wis.2d 356, 126 N.W.2d 26 (1964), the supreme court concluded that issue is joined when the original answer is served, notwithstanding subsequent pleadings.
Summary of this case from Bell v. Employers Mutual Casualty Co.Opinion
January 7, 1964 —
February 4, 1964.
APPEAL from an order of the circuit court for Monroe county: LINCOLN NEPRUD, Circuit Judge. Affirmed.
For the appellants there were briefs by Thomas F. McCaul of Tomah, and Hale, Skemp, Hanson, Schnurrer Skemp of La Crosse, and oral argument by William P. Skemp.
For the respondent there was a brief by Donoran Breitenfield of Tomah, and oral argument by Victor H. Breitenfield.
Plaintiff, a real-estate broker, brought action August 24, 1961, to recover a commission on the sale of defendants' farm and personal property. The complaint alleged the existence of a written listing agreement, a written contract of September 6, 1960, whereby defendants agreed to sell to Fries, a purchaser procured by plaintiff, and a written agreement the same date whereby defendants agreed to pay plaintiff a commission, pursuant to the listing agreement, on the sale to Fries. It was alleged the property was later conveyed to Fries.
Defendants' answer admitted the sale to Fries in the summer of 1961. It alleged that the listing agreement expired before the first transaction with Fries and that the September 6, 1960, agreement was dependent upon conditions which were not fulfilled. Defendants denied they were under any obligation to plaintiff at the time of the ultimate sale. The date of service of the answer does not appear. It was filed, however, November 6, 1961.
On June 5, 1962, defendants obtained leave to amend the answer by supplying copies of all the material documents and alleging that the contract relied on by plaintiff did not express the period during which the plaintiff should procure the buyer and thus did not comply with sec. 240.10, Stats.
On June 21, 1962, defendants gave notice of motion for summary judgment. On June 10, 1963, the circuit court denied the motion, stating both that it was not timely filed and that there were disputes as to material facts. Defendants appealed.
"Notice of motion for summary judgment and the papers in support thereof shall be served within 40 days after issue is joined, subject to enlargement of time as provided in s. 269.45."
Sec. 270.635 (1), Stats.
The foregoing was incorporated in the statute by our rule, effective June 1, 1961. It was intended to prevent the use of a motion for summary judgment for the purpose of delay. We referred to enlargement of time, however, to make it clear that the court could permit a late motion upon compliance with sec. 269.45, Stats.
11 Wis.2d p. vi.
Issue was joined in November, 1961, upon service of the original answer; there was no counterclaim; and either party could have served a notice of trial pursuant to sec. 270.115, Stats. Defendants point out that a somewhat-different issue was raised by the amended answer. Concededly if the forty days be counted from the latter date, the motion would be timely; if counted from the original joinder of issue, the motion would be six months late.
In the light of the purpose of our rule, we interpret it as requiring the forty days to be counted from the joinder as created by the original pleadings. Granting that there may be circumstances where the administration of justice will be best served by entertaining a motion for summary judgment long after the original pleadings, we think the power of the court to enlarge the time is adequate in such circumstances. Where the time has already expired, sec. 269.45 (2), Stats., authorizes extension in the discretion of the court, upon notice, showing of cause and excusable neglect.
We conclude that the motion in this case was late, and properly denied for that reason. We do not reach the merits of the motion. No application appears to have been made for an extension of time. If, however, the denial of the motion were deemed a denial of an extension, the present record does not show any abuse of discretion.
By the Court. — Order affirmed.