McKenzie v. Clear Lake Union Free High School District No. 1

31 N.W.2d 526, 252 Wis. 327, 1948 Wisc. LEXIS 278

• Court: Wisconsin Supreme Court
• Decided: February 18, 1948
• Status: Published

Opinion

Hughes, J.

The purpose of'the summary-judgment statute was primarily to discourage dilatory pleading and practice. Prime Mfg. Co. v. A. F. Gallun & Sons Corp. (1938) 229 Wis. 348, 281 N. W. 697.

The statute is drastic and should be applied only where it is perfectly plain that there is no substantial issue to be tried. Prime Mfg. Co. v. A. F. Gallun & Sons Corp., supra; Marco v. Whiting (1944), 244 Wis. 621, 12 N. W. (2d) 926; Parish v. Awschu Properties, Inc., (1945) 247 Wis. 166, 19 N. W. (2d) 276.

This court has held that defenses in abatement of an action may be raised by motion for summary judgment. Binsfeld v. Home Mut. Ins. Co. (1944) 245 Wis. 552, 15 N. W. (2d) 828.

No case has been called to our attention authorizing use of the motion before complaint.

In connection with the appeal from the order denying the motion for summary judgment, the appellants ask this court to review the trial court’s order denying the motion to suppress the subpoenas directing defendants to appear before a court commissioner for discovery examination pursuant to sec. 326.12 (4), Stats. Such an order by itself is not appealable, and since the motion for summary judgment goes only to the question of whether the pleadings show clearly that there is no merit either to the plaintiff’s cause of action or to the defense set up to such cause of action, it does not make this intermediate order of the trial court reviewable at the present time.

The appeal from the order of the county court denying the motion to suppress the subpoenas is therefore dismissed. The order denying the motion for summary judgment is affirmed.

By the Court. — Appeal from the order denying the motion to suppress is dismissed; the order denying the motion for summary judgment is affirmed.