McKenzie v. Clear Lake Union Free High School District No. 1 , 252 Wis. 327 ( 1948 )

This is an action by respondent against appellant school district and its officers for damages resulting from an alleged breach of respondent's contract as a teacher.

The respondent's attorney caused a summons to be served upon the appellants together with notice of examination of the individual appellants before a court commissioner for the purpose of making discovery of facts within the knowledge of appellants in order to enable respondent to plead.

The summons was served on June 20, 1947, together with notice of examination and subpoenas, and accompanied by an affidavit of respondent's attorney setting forth the points upon which discovery was desired.

Appellants appeared and filed an affidavit of their attorney setting forth, among other things, and in abatement of the action, that the respondent had not filed a claim against the school district and that until such claim was filed and disallowed no action could be maintained. Sec. 40.18, Stats.

Upon this affidavit appellants moved to suppress the subpoenas issued by the court commissioner and for summary judgment dismissing the action with costs. The trial court denied the appellants' motions, and this appeal was taken. 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; Marcov. Whiting (1944), 244 Wis. 621, 12 N.W.2d 926; Parishv. 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.