OpenJurist

250 F2d 574 Steiner v. Wertheimer

250 F.2d 574

Oscar H. STEINER, Appellant,
v.
Joseph WERTHEIMER, Appellee.

No. 13149.

United States Court of Appeals Sixth Circuit.

Dec. 10, 1957.

Jack G. Day, Cleveland, Ohio, for appellant.

Sidney N. Weitz, Cleveland, Ohio, for appellee.

Before ALLEN and MILLER, Circuit Judges, and BOYD, District Judge.

PER CURIAM.

1

This cause, having been removed from the state court to the United States District Court, was dismissed by the District Court on defendant's motion for summary judgment from which ruling this appeal was taken.

2

It appears from the record, briefs and argument of counsel for the respective parties that numerous factual issues, involving two different legal theories in support of the relief sought, are raised by the petition and the answer, and that defendant's motion for summary judgment was sustained by the District Court by the mere entry of an order to that effect without accompanying or explanatory statement showing why in its opinion none of said issues were not genuine issues or upon what particular facts its ruling was based, assuming that some of the factual issues may not have been genuine, or the legal basis for the order of dismissal.

3

The Court is of the opinion that the record in its present shape does not present the solid basis of findings based on litigation or uncontradicted facts or the views of the District Judge with respect to the legal issues involved, that should precede our review of the judgment rendered in this case. The factual situation should be fully developed through the usual trial procedure in the District Court, instead of summary judgment proceedings. Kennedy v. Silas Mason Co., 334 U.S. 249, 256-257, 68 S.Ct. 1031, 92 L.Ed. 1347; Stevens v. Howard D. Johnson Co., 4 Cir., 181 F.2d 390, 394; Estepp v. Norfolk & Western Railway Co., 6 Cir., 192 F.2d 889; Hoy v. Progress Pattern Co., 6 Cir., 217 F.2d 701, 704.

4

The judgment is reversed and the cause remanded to the District Court for further proceedings consistent with the views expressed herein.