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Smith v. Ashley

JULY 3, 1975.

ELSIE SMITH, PLAINTIFF-APPELLANT,

v.

RAYMOND ASHLEY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Vermilion County; the Hon. RALPH S. PEARMAN, Judge, presiding.

MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Appellant Elsie Smith filed a complaint against appellee Raymond Ashley, alleging negligence and requesting damages. Summary judgment was granted in favor of Mr. Ashley. Ms. Smith is appealing that order.

The complaint alleges that Mr. Ashley, on February 13, 1972, drove to Ms. Smith's and invited her to enter his car. The gist of the complaint is that defendant Ashley operated his car negligently by permitting or causing it to move just as Ms. Smith was attempting to enter.

Defendant moved for summary judgment. In support thereof he filed excerpts from the discovery depositions of Ms. Smith, himself and two passengers in the car. Mr. Ashley and the two passengers denied that the car moved at any time. Ms. Smith stated that something happened as she grasped the car door handle, but she does not mention a movement of the car.

In response to the motion, plaintiff filed a counteraffidavit stating that the car moved just as she attempted to enter.

Plaintiff first argues that other eyewitnesses to the occurrence existed and that it was error to grant summary judgment on the deposed testimony of some but not all the witnesses. Plaintiff cites no authority for this proposition.

Summary judgments are authorized by section 57 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 57). That section provides that summary judgments may be granted without affidavits at all.

Supreme Court Rule 191 (Ill. Rev. Stat. 1973, ch. 110A, § 191) states that two or more affidavits can be used in support of a motion for summary judgment if the facts to be shown are not in the personal knowledge of one person.

• 1 It is a long leap from these provisions to the proposition that affidavits from all persons possibly having knowledge must be submitted. We are not prepared to make that leap. If the persons had knowledge favorable to plaintiff, it was her right to obtain affidavits or to inform the court of the reasons why she was unable to do so. She did neither.

Plaintiff also objects to the use of excerpts from the depositions, rather than the complete depositions. The excerpts were authenticated by the sworn affidavit of defendant's counsel.

• 2 No objection was made in the trial court to the filing of excerpts. Supreme Court Rule 211(d) (Ill. Rev. Stat. 1973, ch. 110A, § 211(d)) provides that errors and irregularities in connection with depositions are waived unless a motion to suppress is promptly made. Issues which are not raised in the trial court are not to be considered for the first time on appeal even in summary judgment cases. (Anderson "Safeway" Guard Rail Corp. v. Champaign Asphalt Co., 131 Ill. App.2d 924, 266 N.E.2d 414.) We, therefore, hold that if this was error the issue has not been preserved for appeal.

No citations are required for the proposition that summary judgment can only be granted where the record shows that no genuine issue as to any material fact exists. Plaintiff asserts that the record shows that a dispute exists.

Plaintiff's complaint alleges that the proximate cause of her injuries was the moving of defendant's car at the time she was about to enter.

Defendant introduced, in conjunction with his motion for summary judgment, excerpts from plaintiff's deposition. Portions will be ...


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