
    VELASQUEZ v. MEEHAN
    Judgment — Summary Judgment — Issue op Fact.
    Trial judge erred in granting summary judgment where there were disputed issues of fact.
    References por Points in Headnote
    41 Am Jur, Pleading §§ 340-343.
    Propriety of entering summary judgment for plaintiff before defendant files or serves answer to complaint or petition. 85 ALR 825.
    Appeal from Wayne, Victor J. Baum, J. Submitted Division 1 November 12, 1970, at Detroit.
    (Docket No. 6557.)
    Decided December 9, 1970.
    Complaint by Robert L. Velasquez and Helen Velasquez against Robert Meehan and Clara Meehan to acquire prescriptive rights over land. Counterclaim by defendants against plaintiffs to remove a fence from property. Summary judgment for defendants on both complaint and counterclaim. Plaintiffs appeal.
    Reversed and remanded.
    
      Seymour Berger, for plaintiffs.
    
      Dee Edwards, for defendants.
    Before: V. J. Brennan, P. J., and Levin and Peterson, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

Litigation of a legally insignificant but predictably acrimonious boundary dispute resulted in dismissal of plaintiffs’ complaint by summary judgment. Attempts to negotiate settlement of defendants’ counter-complaint resulted in further strife and defendants moved for leave to file an amended counter-complaint alleging settlement agreement and praying for specific performance thereof. At the hearing on that motion, an invariably considerate and composed trial judge, distraught by the petty perversity of the parties over a matter that was virtually de minimis, granted summary judgment against the plaintiffs on the proffered counter-complaint. Plaintiffs had no opportunity to file a written response, they made no admissions at the hearing, and specifically denied the agreement claimed by defendants.

There being disputed issues of fact, we reverse and remand. Hudson v. Hudson (1970), 27 Mich App 137; Durant v. Stahlin (1965), 375 Mich 628.  