19 Wis. 2d 176 | Wis. | 1963
If any agreement of settlement of the case American Casualty Co. v. Robinson upon state terms was reached between Mr. Lewis and Mr. Sheldon that agreement clearly did not conform to the requirements of sec. 269.46 (2), Stats., essential to make the agreement binding. Evidently American Casualty recognized this for it did not even present the agreement to the circuit court and ask for judgment upon it. If it had been so presented and the statute called to the court’s attention that court would necessarily
To hold that the settlement, void in its inception, nevertheless provides grounds to declare it valid and to permit recovery upon it is in effect to repeal the statute. Very effectively we would be authorizing a party to do indirectly that which the statute prohibits him from doing directly.
Plaintiff contends, in substance, that it can enforce defendant’s promise to pay in a different action and that its right is supported by our decision in Logemann v. Logemann (1944), 245 Wis. 515, 15 N. W. (2d) 800. In that case plaintiffs had brought action for specific performance of an agreement. While the action was pending an agreement was reached under which plaintiffs agreed to dismiss the action in consideration of a promise by defendants to pay plaintiffs the sum of $50 per month so long as either of them shall live. The action was dismissed on the merits and the first instalment paid but thereafter defendants declined to pay.
In the Logemann Case, supra, we said (p. 517) :
“It [sec. 269.46 (2), Stats.] has reference to stipulations directly affecting the course of an action in court and does not control subsequent causes of action on different issues. That the consent to dismissal of a bona fide cause of action is ample consideration to support a new promise is well-settled.”
We held the contractual obligation of defendants to make payments during the lives of plaintiffs enforceable in a second action.
We think the Logemann decision was sound, but fundamentally different on its facts. Undoubtedly the oral agree
We concur in the learned trial judge’s decision granting summary judgment.
Appellant contends that the affidavits of respondents in support of their motion for summary judgment were fatally defective because in them affiant states that he believes there is no cause of action rather than following the statutory requirement that the affidavits shall state the moving party believes “that the action has no merit.” Sec. 270.635 (2), Stats. For this reason appellant claims it was reversible error to grant the motion for summary judgment. We consider that the learned trial court correctly disposed of that contention as follows:
“The third objection is that defendants’ affidavit failed to allege that plaintiff’s action had no merit. The affidavit of the defendants did state ‘that your affiant verily believes that there is no cause of action.’ The court deems that a sufficient and substantial compliance with the summary-judgment statute. It does not appear from a reading of the cases cited by plaintiff’s counsel that the court requires the use of the exact words of the statute.”
While we think that the trial court was correct, we think also that when it is so easy to employ the words of the statute counsel skates unnecessarily on very thin ice in substituting other language in the hope that the trial and the appellate
By the Court. — Judgment affirmed.