"[A] party opposing a motion for summary judgment is not entitled to rely on the hope of a subsequent magical appearance at trial of genuine issues of material fact.”
How later courts described this case
- "[A] party opposing a motion for summary judgment is not entitled to rely on the hope of a subsequent magical appearance at trial of genuine issues of material fact.”
Written by the judges who cited it.
The opinion
REYNOLDSON, Justice
(dissenting).
A summary judgment, depriving one of the litigants of his day in court, should not be based on an equivocal foundation. Here plaintiff’s motion for summary judgment alleges:
“2. The Crawford Elevator Co., is a grain company in the business of buying and selling grain, and when it bought plaintiff’s soybeans from the defendant Rathjen, converted said soybeans to its own use as stated in the petition.”
This can only be construed as an allegation of plaintiff’s ownership of the soybeans. It is the only material fact asserted in the motion: the balance consists mainly of legal conclusions. Ownership would support an action for conversion, which was the gravamen of plaintiff’s claim against this defendant. See 89 C.J.S. Trover and Conversion § 3, pp. 533-534. Plaintiff’s inconsistent petition and motion generated a fact issue.
It is to be conceded defendant’s affidavit narrowly escapes disqualification as a “resistance.” However, a sufficient affidavit may consist of ultimate or evidentiary facts. American State Bank v. Leaver, 261 Iowa 124 , 153 N.W.2d 348 (1967); Eaton v. Downey, 254 Iowa 573 , 118 N.W.2d 583 (1962). Here the defendant elevator denied plaintiff’s ownership of any soybeans it purchased. This was a good defense to an action for conversion of “plaintiff’s soybeans.”
Plaintiff failed to carry the burden of showing no material fact issue on plaintiff’s interest in, or ownership of, the soybeans. See Tip Top Distributing Co. v. Insurance Plan S. & L. Ass’n, 197 N.W.2d 565 (Iowa 1972). I would reverse and remand for further proceedings.
MOORE, C. J., joins in this dissent.