86 Wis. 323 | Wis. | 1893
At the time the policy was procured Mrs. Hodgson held a mortgage on the premises, given September 6, 1876, for $600. That mortgage was considerably less than the amount of the insurance. The property insured being real estate, there can be no question that the mortgage was merely a lien, and that the mortgagor, Andrew Carberry, was the absolute owner of the premises and had an insurable interest therein to the extent of their value, notwithstanding the mortgage. Cayon v. Dwelling House Ins. Co. 68 Wis. 510. It is, moreover, well settled that Mrs. Hodgson, as' mortgagee, was absolutely bound by any and all the stipulations in the policy. Gillett v. L. & L. & G. Ins. Co. 73 Wis. 203; Blake Opera House Co. v. Home Ins. Co. 73 Wis. 670; Meiswinkel v. St. Paul F. & M. Ins. Co. 75 Wis. 156; Continental Ins. Co. v. Hulman, 92 Ill. 145. It follows that whatever may have been said or done by Andrew Carberry as such owner which might operate to defeat the policy would be equally available as a defense against any claim made against the company by Mrs. Hodgson. Ibid. This being so, it is very manifest that Andrew Carberry was a necessary party to the action, and that he and Mrs. Hodgson were properly joined as plaintiffs when the action was originally commenced. Hammel v. Queen Ins. Co. 50
The question recurs whether the court improperly refused to allow the action to be revived on the application of the administrator. As indicated in the foregoing statement, he was not appointed until more than two years after the death of Andrew Carberry, and the application was not made until more than three years after his death, nor until after the trial and judgment against Mrs. Hodg-son. The statute provides, in effect, that in case of the death of a party, if the cause of action survives or continues, the court, on motion, at any time withrn, one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representatives or successor in interest. Sec. 2803, R. S. The question presented has recently received the careful consideration of this court. Cavanaugh v. Scott, 84 Wis. 93. It was there in effect held that the court is at liberty, in the exercise of a sound discretion, to grant or refuse such application according to the peculiar circumstances of each particular case; that an unexplained and unexcused neglect to proceed for an unreasonable period, whereby the other party has or may have lost his means of defense, would justify such refusal; that such laches may consist in long delay and gross neglect to proceed in the action, before as-well as after the death of the party; but that the mere lapse of time which the court can see will not operate prejudicially to the opposite party, and not amounting to a statutory bar, will not afford ground for the denial of such application. The reasons for so holding and the authorities in support of the same are sufficiently given in the opinion of Mr. Justice PiNNey in the case cited. The same principle as to laches has frequently been affirmed by our highest federal court. Bryan v. Kales, 134 U. S. 126; Galliher v. Cadwell, 145 U. S. 368; Johnston v. Standard M. Co.
By the Oourt.— Ordered accordingly.