§ 25-1330 — Claimant; right to move for summary judgment

Nebraska § 25-1330

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

A party seeking to recover in district court upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of thirty days from the service of process on the opposing party or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his or her favor upon all or any part thereof.

Legislative History

Source: Laws 1951, c. 65, § 1, p. 199; Laws 1998, LB 234, § 6. Annotations: 1. Proper 2. Not proper 3. Miscellaneous 1. Proper Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from these facts and that the moving party is entitled to judgment as a matter of law. Carpender v. Bendorf, 246 Neb. 77, 516 N.W.2d 619 (1994). A summary judgment shall be granted where there is no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law. Glen Park Terr. #1 Homeowners Assn. v. M. Timm, Inc., 230 Neb. 48, 430 N.W.2d 40 (1988). The right of a party to sue as representative of a class may be raised by a motion for summary judgment. Blankenship v. Omaha P. P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976). Where only question of law was presented, summary judgment was proper. State v. Kidder, 173 Neb. 130, 112 N.W.2d 759 (1962). Where controlling facts are not in dispute, and both parties have moved for summary judgment, entry of summary judgment is proper. County of Douglas v. OEA Senior Citizens, Inc., 172 Neb. 696, 111 N.W.2d 719 (1961). Summary judgment was proper under record presented. Dougherty v. Commonwealth Co., 172 Neb. 330, 109 N.W.2d 409 (1961). Where there is no real controversy as to the facts, and no genuine issue remains for trial, summary judgment is proper. First Nat. Bank of Wayne v. Gross Real Estate Co., 162 Neb. 343, 75 N.W.2d 704 (1956). Summary judgment was authorized where coverage of policy of group insurance was not in force. Palmer v. Capitol Life Ins. Co., 157 Neb. 760, 61 N.W.2d 396 (1953). Summary judgment is proper if pleadings and admissions show there is no genuine issue of fact. Mueller v. Shacklett, 156 Neb. 881, 58 N.W.2d 344 (1953). Summary judgment was proper on issue of liability where publication was libel per se. Rimmer v. Chadron Printing Co., 156 Neb. 533, 56 N.W.2d 806 (1953). Summary judgment for recovery of attorney's fees was properly granted. Mecham v. Colby, 156 Neb. 386, 56 N.W.2d 299 (1953). Summary judgment is authorized only where moving party is entitled to judgment as a matter of law. Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244 (1952). 2. Not proper Where there is a genuine issue as to material facts, it is error to render summary judgment. Hall v. Hadley, 173 Neb. 675, 114 N.W.2d 590 (1962). Denial of summary judgment was not prejudicial error. Greer v. Chelewski, 162 Neb. 450, 76 N.W.2d 438 (1956). Where question of fact is in dispute, summary judgment is not proper. City of Omaha v. Lewis & Smith Drug Co., Inc., 156 Neb. 650, 57 N.W.2d 269 (1953). 3. Miscellaneous It would be prejudicial to permit plaintiff to proceed in summary judgment where the defendant has been denied the right to file amended answers and a setoff. Building Systems, Inc. v. Medical Center, Ltd., 213 Neb. 49, 327 N.W.2d 95 (1982). On a motion for summary judgment, the moving party bears the burden of proving that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter of law, and this burden may be discharged by a showing that if the case proceeded to trial his opponent could produce no competent evidence to support a contrary position. In re Estate of Nicholson, 211 Neb. 805, 320 N.W.2d 739 (1982). Issue on motion for summary judgment is whether or not there is a genuine issue of fact, not how that issue should be determined. Valentine Production Credit Assn. v. Spencer Foods, Inc., 196 Neb. 119, 241 N.W.2d 541 (1976). The issue to be tried on a motion for summary judgment is whether or not there is a genuine issue as to any material fact. Youngs v. Wagner, 172 Neb. 735, 111 N.W.2d 629 (1961). Summary judgment may be obtained in a declaratory judgment proceeding. Anderson v. Carlson, 171 Neb. 741, 107 N.W.2d 535 (1961). Rules for application of Summary Judgment Act stated. Ingersoll v. Montgomery Ward & Co., Inc., 171 Neb. 297, 106 N.W.2d 197 (1960). Summary Judgment Act is constitutional. Eden v. Klaas, 165 Neb. 323, 85 N.W.2d 643 (1957). Object of motion for summary judgment is to separate the formal from the substantial issues. Rehn v. Bingaman, 157 Neb. 467, 59 N.W.2d 614 (1953).