25-1331 Defending party; right to move for summary judgment. - Nebraska Statutes

25-1331. Defending party; right to move for summary judgment.A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. SourceLaws 1951, c. 65, § 2, p. 199.AnnotationsA defendant is entitled to summary judgment if the defendant shows that an essential element of the plaintiff's cause of action is nonexistent. Tuttle & Assoc. v. Gendler, 237 Neb. 825, 467 N.W.2d 881 (1991).The defense of res judicata need not be raised by answer, but can be raised and passed upon for the first time on a motion for summary judgment. DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 316 N.W.2d 772 (1982)Party in declaratory judgments proceeding may move for summary judgment. Arla Cattle Co. v. Knight, 174 Neb. 360, 118 N.W.2d 1 (1962).To receive consideration on appeal, affidavits used on motion for summary judgment must be made a part of the bill of exceptions. Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959).When a cause of action is commenced against an estate that has already been closed, the proper method of attacking the petition on the grounds that the estate has previously been closed and the personal representative discharged is through a motion for summary judgment, not a demurrer, because evidence beyond what appears on the face of the petition is usually necessary to establish that the estate has been closed and the personal representative discharged. Mach v. Schmer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).