ARTHUR R. FORCE, Appellant, v. WILLIAM PECCOLE, L. L. OUSLEY, FRANK S. DITTMAN AND MARGARET A. DITTMAN, Husband and Wife, JOHN DOES I to V, JANE DOES I to V, JOHN DOE CORPORATION, a Corporation, JOHN DOE and RICHARD ROE, A Copartnership, Respondents
Force v. Peccole
ARTHUR R. FORCE, Appellant, v. WILLIAM PECCOLE, L. L. OUSLEY, FRANK S. DITTMAN AND MARGARET A. DITTMAN, Husband and Wife, JOHN DOES I to V, JANE DOES I to V, JOHN DOE CORPORATION, a Corporation, JOHN DOE and RICHARD ROE, A Copartnership, Respondents.
ARTHUR R. FORCE, Appellant, v. WILLIAM PECCOLE, L. L. OUSLEY, FRANK S. DITTMAN AND MARGARET A. DITTMAN, Husband and Wife, JOHN DOES I to V, JANE DOES I to V, JOHN DOE CORPORATION, a Corporation, JOHN DOE and RICHARD ROE, A Copartnership, Respondents.
No. 4029
March 11, 1958
322 P.2d 307
William P. Compton, of Las Vegas, for Appellant.
George E. Franklin, Jr., of Las Vegas, for Respondents.
OPINION
Per Curiam:
This is an appeal from summary judgment rendered by the trial court against the appellant as plaintiff in the action below. The action is brought to establish an interest in a joint venture claimed by the plaintiff through an assignment from one J. J. Sheppard whose interest, in turn, is allegedly established or evidenced by a written contract to which the defendants are parties. Sheppard himself was not a party to the contract.
The ground upon which the trial court based judgment does not appear from the record. In support of judgment respondents contend that appellant has failed to establish himself as a third party beneficiary of the contract or as grantee of an interest in the joint venture. Without further clarification and briefing we are reluctant to attempt specification of the issues thus raised and to dispose of them upon the merits. However, even assuming merit in respondents' position, the propositions they assert, as we understand them, either go to the sufficiency of the complaint to state a claim or anticipate matters of pleading or proof. They do not demonstrate as a matter of law that no cause of action actually,exists and that respondents are now entitled to judgment. A distinction must be recognized between the question: Has a claim been stated? and the question: Has it been demonstrated that no claim can be stated since no claim exists? Ramsouer v. Midland Valley R. Co., 44 F.Supp. 523.
This being so, the issue of appellant's right, to an interest in the joint venture remains for determination, although issues relating to the sufficiency of pleadings may preliminarily be involved also. Summary judgment, then, was error.
Reversed and remanded with instructions that summary judgment be set aside and for further proceedings.