Atchison v. McGee

California Court of Appeal May 14, 1956 No. Civ. 8836Published

Before: Schottky

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Holding. The court held that a summary judgment was properly granted where the plaintiffs' affidavit established uncontroverted facts regarding property ownership and the defendant failed to file a counteraffidavit to create a genuine issue of material fact.

Issues

Whether the plaintiffs' affidavit was sufficient as a matter of law to support a summary judgment.
Whether the failure to attach copies of deeds to the affidavit rendered it insufficient.
Whether the defendant could rely on the pleadings to dispute the facts stated in the plaintiffs' affidavit.
Whether a formal order striking the answer was required to support the summary judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“All facts alleged in the affidavit must be considered as true unless they are controverted.”

“If a party against whom such a motion is made disputes any statements in the affidavit of the moving party, he must by counteraffidavit show that there are issues of fact to be determined in the action.”

“The judgment is affirmed.”

SCHOTTKY, J.

Plaintiffs commenced an action against defendant to quiet title to certain real property in Sacramento County. Defendant filed an answer denying the material

[516]

allegations of plaintiffs’ complaint and alleging that she was the true owner of said real property. Thereafter plaintiffs filed a motion for summary judgment based upon the affidavit of James P. Atchison, one of the plaintiffs. Defendant filed no counteraffidavit, and, following a hearing on the motion at which both plaintiffs and defendant were represented by counsel, the court made an order granting said motion, and summary judgment was entered in favor of plaintiffs.

Defendant has appealed from the judgment, and her first and principal contention is that the affidavit filed by plaintiffs in support of their motion was insufficient as a matter of law to support the order granting a summary judgment.

Defendant quotes from section 437c of the Code of Civil Procedure as follows:

“The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.”

The affidavit upon which plaintiffs’ motion was based set forth that on January 17, 1950, one Sanauncie Harris was the owner of the real property in controversy; that on said date she “made, executed and delivered a Grant Deed” of said property to plaintiffs and Georgia Atchison as joint tenants and that said deed was recorded on January 18, 1950; that since said deed was recorded both Sanauncie Harris and Georgia Atchison have died and that plaintiffs are the sole owners of the said property; that on May 25, 1951, defendant caused to be recorded a document dated August 17, 1950, purporting to be a gift deed of said property from Sanauncie Harris to defendant; that plaintiffs have been in possession of said property since January 17, 1950, and that defendant never has been in possession of it nor has she paid any taxes on it; that such facts are within the “personal knowledge of affiant, and if called as a witness, affiant will testify

Atchison v. McGee

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SCHOTTKY, J.

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