252 P.2d 98 | Colo. | 1952
delivered the opinion of the court.
The Durland Trust Company, a Nebraska corporation, as plaintiff, and so designated herein, instituted an action in the district court of Logan county against E. P. Morlan and Elsie M. Morlan, his wife, to whom we will refer herein as defendants, or by name, seeking reformation of a deed whereby plaintiff, as grantor, conveyed to E. P. Morlan certain pasture lands situated in Logan county, Colorado, and for consistent relief in event reformation
Plaintiff’s complaint was filed July 5, 1951, and therein it is recited and alleged that the deed sought to be reformed was dated April 6, 1948, and that as a result either of mutual mistake of the parties thereto, or of plaintiff’s mistake, and knowledge of such mistake upon the part of defendant E. P. Morlan, there was omitted from said deed a reservation by grantor of all of the oil, gas and minerals upon, in or under the lands so conveyed and which, at the time of the execution of said deed, it was intended by both the grantor and grantee should be reserved unto the grantor as evidenced by correspondence between said parties, and an agreement of sale and purchase, dated March 3, 1948, a copy of-which, marked Exhibit A, was attached to the complaint. Plaintiff further alleged that under date of January 1, 1950, defendants jointly executed an oil and gas lease covering said premises, together with other lands, receiving an unknown consideration as a bonus for the granting of said lease and that they were to receive on account thereof an annual rental of $640. It then is charged that, upon demand of plaintiff, defendants had refused to modify said deed or to assign to plaintiff the oil and gas lease to which reference is hereinabove made, or to pay to plaintiff any part of the bonus or rentals derived pursuant to said lease. The- prayer of the complaint conforms to the allegations thereof, and to the demand alleged to have been made by plaintiff upon defendants.
Defendants’ first appearance in the action was by counsel on their behalf filing a motion for a more definite statement or bill of particulars. Counsel for defendants had also served interrogatories upon plaintiff’s counsel pursuant to Rule 33, R.C.P. Colo., the answers to which, made by L. B. Nicola, president of plaintiff corporation, were filed on August 3, 1951, as a bill of particulars, and thereto were attached, as part thereof, copies of the
It is apparent that the trial judge was persuaded that where, as here, both parties to a controversy move for summary judgment, it is incumbent upon the court to finally determine the issues upon the record as then made. In ruling on these motions he stated that “it appears clear that the Court has not only the right but the obligation to pass upon the matter presented on the pleadings.” This the trial court proceeded to do, although with some evident reluctance as indicated by another passage which we quote from the ruling: “The Court would feel better informed if he had the benefit of hearing the evidence of both parties to this transaction; but under the situation presented, the Court must rule on the facts as submitted.” Acting upon this assumption, the trial court denied defendants’ motion, granted plain
Defendants, as plaintiffs in error here, by counsel, present in their specification of points seven grounds upon which they rely for reversal of the judgment. The first three points go to the substantive issues on the merits; by the fourth, they question the right of the court to determine equitable issues upon motion for summary judgment; by the fifth they charge error “in holding that in case both parties make motions for summary judgment, the Court is required to rule that no fact issue exists';” in the sixth they allege that the “Court erred in holding that where both parties make motions for summary judgment, the Court must determine the controversy for one movant or the other;” and, in the seventh, that the “judgment of the Court is erroneous in not being based upon evidence.”
The fifth, sixth and seventh points of the specification all go to the general proposition that the trial court, under the circumstances, erred in granting summary judgment favorable to plaintiff. We are convinced that merit attends this contention, and we will discuss this phase of the case only, lest we fall into the same error as did the trial court should we undertake to determine the primary issues of the controversy before the facts are fully before us.
It is to be observed that up until the time judgment was summarily entered upon plaintiff’s motion, defendants had filed only two motions in the case; one for bill of particulars and one for summary judgment. They had filed no answer or other pleadings, nor had they submitted to giving any deposition or presented any affidavit. They had entered no denial, and had made no admissions of any of the allegations plaintiff had set out in presenting its claim against them. It is the law, that when defendants filed their motion for summary judgment they admitted thereby all facts properly pleaded by plaintiff, and as appeared in the record at that
To warrant the granting of summary judgment, the situation must be such that no material factual issue remains in the case. The intent and purpose of the rule is that, where the facts are undisputed, or so certain as not to be subject to dispute, the court is in position to determine the issue strictly as a matter of law. It is properly to be exercised only where the facts are clear and undisputed, leaving as the sole duty of the court the determination of the correct legal principles applicable thereto. Parrish v. De Remer, 117 Colo. 256, 273, 274, 187 P. (2d) 597, 606; Smith v. Mills, 123 Colo. 11, 15, 225 P. (2d) 483, 485; see, also, Flanders v. Kochenberger, 118 Colo. 104, 111, 112, 193 Pac. 281, 285; Tamblyn v. City and County of Denver, 118 Colo. 191, 193, 194, 194 P. (2d) 299, 300. “In passing upon a motion for summary judgment, it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.” citing cases. Michel v. Meier, 8 Fed. Rules Dec. 464, 471. And, “A motion for summary judgment should be denied if under the evidence reasonable men might reach different conclusions.” Id., page 472.
In the case at bar, had it not been for the filing of the answers by the president of plaintiff corporation to defendants’ interrogatories as a bill of particulars, defendants’ motion should properly have been considered as a motion for judgment on the pleadings. Counsel for defendants did not thereby admit generally the verity of
It will be observed, that here, the trial court was dealing with the question of intent; always difficult, and, unless confessed, usually an issue of fact. Hatfield v. Barnes, supra. Even from the record as made, and without the taking of evidence, the intention of the parties at and during negotiations for the sale and purchase of this land is uncertain and subject to argument. The trial judge seems to have taken the view that the reservation, as it appears in the contract, truly expressed the intent of the parties and should have been carried into the deed. In this view he may be right or he could as easily be wrong because, from the correspondence considered in conjunction with the contract, this issue is difficult
Where both parties to a legal action file motions for summary judgment, is the court restricted against denying both motions and requiring the production of additional evidence, or is it obligated under the rules to grant one or the other of the motions and enter judgment accordingly? The answer is no. If, upon considering the
The fact that each side in moving for summary judgment in his or its favor, respectively, assert “that there is no genuine issue as to any material fact” does not necessarily make it so, and does not bar the court from determining otherwise. “It does not follow that, merely because each side moves for a summary judgment, there is no issue of material fact. For, although a defendant may, on his own motion, assert that, accepting his legal theory, the facts are undisputed, he may be able and should always be allowed to show that, if plaintiff’s legal theory be adopted, a genuine dispute as to a material fact exists.” Walling v. Richmond Screw Anchor Co., 154 F. (2d) 780, 784 (1946); cited with approval (1947) in Garrett Biblical Institute v. American University, 163 F. (2d) 265, 266.
Defendants’ counsel upon filing their motion for summary judgment in this case, in effect asserted that there was no genuine issue of material fact because, by admitting the truth of all material facts well pleaded, including the contract Exhibit A, and all of the correspondence between plaintiff and E. P. Morlan prior to execution and delivery of the deed, the plaintiff was not entitled to judgment under defendants’ legal theory of the case that all prior negotiations and transactions between the parties were merged in the deed, that any variation between the deed and previous negotiations are presumed to have been mutually agreed upon, and that the pleadings were not so framed as to permit plaintiff to produce that degree of proof required by law to jus
It is manifest that when defendants’ motion for surhmary judgment was overruled, their admission of facts under their - legal theory terminated, and it was error for the trial court to give any consideration thereto in connection with his determination of plaintiff’s' motion. This leaves plaintiff’s motion for summary judgment completely unsupported by anything except such as it had itself placed in the record, and which definitely discloses uncertainty of fact and disputable issues for trial.
The judgment of the trial court, therefore, is reversed and- the cause remanded with direction to vacate the judgment in favor of plaintiff; enter a rule requiring defendants to answer; and proceed thereafter in - due course and in such manner as may seem advisable.