After Remand
Plaintiffs appeal from an order of summary judgment for defendants. The trial judge basеd his order on the failure of the plaintiffs to raise a genuine issue as to any material fact. GCR 1963, 117.2(3).
This is not the first time that this action has been before our Court. In
Remes v Duby,
Such specific allegations were deemed necessary and essential to the retention of the attorneys as defendants. This appeal arises out of the subsequent trial court proceeding.
Plaintiffs’ claim in the case at bar that their amended complaint meets the requisite specificity necessary to state a cause of action pursuant to GCR 1963, 117.2(1), and that the evidence submitted by the parties presents a genuine issue as to a material fact. GCR 1963, 117.2(3).
The amended complaint of plaintiffs cоntains one revised paragraph in which it is alleged that attorney Chojnowski directed Woods and Duby to make service on the plaintiffs "at any cost”, including fоrceful entry into their home. Furthermore, they claim that:
"Subsequent inquiry to the Eaton County Prosecuting Attorney’s office and the Eaton County Sheriffs office resulted in being tоld 'The attorney from Kalamazoo that secured and delivered the summons tоld the process servers of the Sheriffs Department that they had a right to enter the Remes’ house and to get service on them at "any cost”, and could break into the Remes’ house to make service’.” 1
Motions brought under GCR 1963, 117.2(1) are to bе tested on the pleadings alone.
Todd v Biglow,
However, a motion for summary judgment grounded on GCR 1963, 117.2(3) is designed to determinе whether there is any competent evidence that could support thе claim. The courts must consider the pleadings, affidavits, depositions, admissions, and documentary evidence filed in the action. See Bashara, The Elusive Summаry Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397.
Supporting affidavits must be based on personal knowledge, not merely information and belief, so that the affiant can testify competently if sworn as a witness.
The affidavit must set forth with particularity such facts as would bе admissible as evidence. Opinion, conclusionary denials, unsworn aver-ments, and inadmissible hearsay do not satisfy the court rule.
Durant v Stahlin,
For the most part, plaintiffs’ supporting affidavits contain inadmissible hearsay, mere conclu-sionary language and reiteration of the unsworn averments.
It is only Sheriff Hoag’s affidavit which merits further consideration. In his affidavit he states that
"the attorney from said law firm contaсted him and requested service be made at any cost, by any means, and offered $100.00 to $200.00 bonus for making the service; and that this information was passed on to Deputies Duby and Woods.”
The material or ultimate fact needed to be proved in this case is whether defendant attorneys *538 ever directed that servicе on plaintiffs be made by use of illegal means.
We are compelled tо agree with the findings of the trial judge that there is not one statement in all of the affidavits from which we may infer that the defendant attorneys advised anyone that the deputies were to serve the plaintiffs by forceful entry into their home.
The mоst that is found is that the summons was allegedly to be served "at any cost” and "by any meаns”.
We agree with the trial court that it is not a function of the judiciary to indulge in the remote speculation that the statement contemplated servicе by other than legal means.
When the nonmoving party is unable to provide evidentiary support for the allegations, summary judgment is permissible. See The Elusive Summary Judgment Rule, supra, at 417.
The trial court properly found there was no genuine issue as to any material fact. The order of summary judgment is affirmed. Costs to defendants.
Notes
Plaintiffs’ amended complaint, p 2.