Appeal from Jackson, Russell E. Noble, J.
Allen, P. J., and Bronson and R. M. Maher, JJ.
1. Judgment -- Summary Judgment -- Failure to State Claim -- Test -- Pleading -- Interrogatories -- Issues of Fact.
A party may move for summary judgment if the opposing party has failed to state a claim upon which relief can be granted, but such a motion is to be tested exclusively on the pleadings; interrogatories and depositions are only relevant if the motion for summary judgment alleges that there is no genuine issue of fact (GCR 1963, 117.2).
2. Judgment -- Summary Judgment -- Pleading -- Failure to State Claim -- Conclusions -- Meritorious Claim.
A trial court must accept as true all well-pleaded facts contained in the pleadings when examining whether the pleadings are sufficient to state a claim on which relief may be granted, and should also consider any Conclusions which can reasonably be drawn from the factual allegations; the court should not consider whether the plaintiff has asserted a meritorious claim, but should only consider whether a claim has been legally pled (GCR 1963, 117.2).
3. Evidence -- Admissions -- Judicial Admissions -- Trial -- Dispensing with Proof -- Particular Fact.
Only a statement made by a party or his attorney during the course of a trial can be considered a judicial admission, and it must be a distinct, formal, solemn admission which is made for the express purpose of dispensing with formal proof of that particular fact at trial.
4. Evidence -- Pleadings -- Other Actions -- Admissibility -- Estoppel -- Admissions by Attorney -- Points of Law.
Statements of fact made in pleadings in another action by a party in a present action are inconclusively admissible as evidence in the present action, but they cannot be used for the purpose of establishing the defense of estoppel; nor can admissions by an attorney as to a point of law be considered binding on a court or used to establish the defense of estoppel.
5. Pleading -- Motions -- Estoppel -- Previous Successful Assertions -- Mistake -- Legal Rights -- Different Theory.
A defendant corporation which successfully asserted in an equitable action for injunction that a contract between it and the plaintiff was valid and thereby was allowed to foreclose a mortgage will not later be heard to assert that the plaintiff may not enforce the contract because of the plaintiff's previous position that the contract was null and void; a party's mistake as to its legal right does not estop it from enforcing those rights under a different theory.
6. Corporations -- Unauthorized Foreign Corporations -- Bar from Suit -- Counterclaims -- Sanctions.
One who contracts with an unqualified foreign corporation may avail himself of the bar to suits by such a corporation and still bring a counterclaim or another action arising from the contract against the corporation; to hold otherwise would allow the ...