Sparks v. England , 1 F.R.D. 688 ( 1941 )

REEVES, Judge.

Plaintiff seeks damages for trespass upon her burial lot. The defendants deny ownership but do say that they removed a tombstone as alleged by plaintiff. This tombstone, it is alleged by the defendants, was restored with unimportant changes. The plaintiff says that an inferior tombstone was restored.

The main issues in the case are on questions of damages. I can find no basis for a summary judgment. While plaintiff presents a deed to the property, yet the question of ownership is merely a matter of proof in the general step toward damages. It is not an end within itself. There is no reason for entering a preliminary judgment that plaintiff was the owner of the lot.

It is admitted by the defendants that the tombstone was removed, but they claim it was replaced. There is no place for a summary judgment upon these averments.

Rule 56 of the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, contemplates a summary judgment for a part or all of the claim made in the prayer of the claimant and does not contemplate summary judgments on evidentiary matters en route to that goal.

Judge Davis has filed a motion to vacate an order striking part of his answer. These averments perform no office. It was only pleading evidence and Judge Davis will be permitted to prove the identical facts in mitigation of the alleged damages.

Mr. Warten is not entitled to have a summary judgment entered and Judge Davis is not entitled to have the order mentioned vacated.