Cavanaugh v. Scott

84 Wis. 93 | Wis. | 1893

PinNey, J.

At common law, when a sole plaintiff or sole defendant in a personal action died, the action abated and could not be revived, but all such personal actions as were founded upon any obligation, contract, covenant, debt, or duty to be performed, survived, and did not die with the person, but a new action might be brought by or against the personal representatives of the deceased plaintiff or defendant. 2 Archb. Pr. 876; Hambly v. Trott, 1 Cowp. 372, 373; Holsman v. St. John, 90 N. Y. 461, 462. Under the rule of the common law, this action would have abated by the death of the defendant Scott, and although his liability on the contract or indebtedness, if any, survived against his personal representative, to the extent she received assets, yet all claim against her in such new action would probably have been barred by the statute of limitations. The statute changed the common-law rule by providing that “ an action does not abate by the occurrence of any event, if the cause of action survives or continues; ” and, “ in case of the death or other disability of a party, . . . the court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow or compel the action to be continued by or against his personal representatives or successor in interest.” E. S. secs. 2800, 2803. The action, therefore, while it did not abate by the death of the defendant, Scott, became defective for want of proper parties, so that it could not be continued against his personal representatives without the consent of the court; and this consent the court, for equitable reasons and in the exercise of a sound legal discretion, may withhold. The language of the statute is permissive, and not obligatory, and leave to continue the action may be granted or refused, according to the particular circumstances of each case. This view was adopted by the Court of Appeals in Beach v. Reynolds, 53 N. Y. 1, 64 Barb. 506, under statutory provisions the same as our own. In Evans v. Cleveland, 72 N. Y. 486, a distinction was taken between legal and -equitable actions in this respect; and it was there held that no mere lapse of time would absolutely defeat an application for the continuance of a legal action in the name of the representative of a deceased party, whatever the rule might be in an equitable action. After the Code had been amended in New York so as to provide that “the court must, upon a motion, allow or compel the action to be continued,” etc., omitting the provision for a supplemental complaint, it was held in Coit v. Campbell, 82 N. Y. 509, that the discretion which the court previously had, either to grant leave on motion or to put the party to his supplemental complaint, was taken away, and required that the relief in all cases should be by motion, making it a substitute for the supplemental complaint; that the amendment did not require the granting of the motion in all cases, and the right to the relief asked is to be determined according to the settled rules of equity. But in Holsman v. St. John, 90 N. Y. 461, it was held that, it was obligatory on the court, under this amendment, to grant the motion upon proper affidavits showing the necessary facts, and that no mere lapse of time could defeat the application. In Lyon v. Park, 111 N. Y. 350, the subject was carefully examined, and it was there declared that “ it had never been held in that court that an unexplained or inexcusable neglect to proceed for a long period, during which the other party has lost his means of defense, may not be a sufficient ground for denying a continuance ” of the action; and it was there held that, “as an application to the court is necessary to authorize its revival or continuance, the court may, on the ground of inexcusable laches, or where irreparable injury will be suffered, deny the application. Legal rights are frequently lost by laches, where no question of the statute of limitations is involved; and the right to a continuance of an action on the death of a party, where the cause of action survives, is not of so absolute a character as to preclude the court, in the exercise of a legal discretion, having a regard to all the circumstances, from denying a continuance of the action.”

We think, in view of the condition of the law before the statute, and its manifestly discretionary terms, the case of Lyon v. Park, 111 N. Y. 350, is a wise and correct exposition of the law; and that an application to revive and continue an action must be decided upon all the facts and circumstances of the case, whether occurring before or after the death of the party, with a view to the ends of substantial justice; and that a party may not, by paying no attention to the prosecution of his action, wait until the opposite party and his witnesses are dead, and the instruments and means of proof to contest his claim are destroyed, and then ask the court to permit him to revive and prosecute his action, and to reap the fruits of such an unconscientious and inequitable course of proceeding. In this case, as in Lyon v. Park, supra, it was urged that the opposite party had been guilty of laches, and might have forced the case to a trial in his lifetime; but, as said in that case, “the primary duty to move to continue the action was on the plaintiff.” Resides, he must maintain his right to continue the action by excusing his laches, and by proof on his part of good faith and diligence in the prosecution of his action, and the laches of the defendant does not serve to excuse or justify his gross and utterly inexcusable delay. The plaintiff had it in his power to proceed at any time, and to have compelled a determination of the controversy, when the means of doing approximate justice, at least, were within the control of both parties. The law discourages and looks with disfavor on laches, and encourages diligence and good faith. The rule recognized in Lyon v. Park, supra, is sustained by subsequent cases. In re Palmer, 115 N. Y. 493; Duffy v. Duffy, 117 N. Y. 647. The point under consideration was not considered or decided in the case of Plumer v. McDonald L. Co. 74 Wis. 137. We hold, therefore, that an unexplained and unexcused neglect to proceed for an unreasonable period, during or by which the other party has lost his means of defense, so that Ms rights in respect thereto will be put in peril, is a sufficient ground for denying an application to continue or revive an action against the personal representatives of a deceased party; that such laches may consist of long delay and gross neglect to proceed in the action, occurring before the death of the party, as well as after; though mere lapse of time, however, 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 an application.

It is plain that the right of defense of the personal representative of the deceased defendant will be greatly endangered, if not wholly lost, should the action be now revived and continued. The defendant was a material witness, without whose testimony it is probable his defense cannot be made out. The papers, pay rolls, and vouchers put in evidence before the referee have been destroyed, and witnesses have become widely scattered, or have died, and1 the dust of time and forgetfulness has settled over the transaction in question, and the plaintiff, through his gross and inexcusable neglect, has lost all right to agitate his claims in court again. For a period of nearly eighteen years be did not take a single step in the cause, and the conduct of the plaintiff is open to the imputation of having waited for the death of his adversary and the loss of his proofs, that he might thus be enabled to prevail against his personal representative. We think it would be a perversion of the discretionary power vested in the court by statute to permit such an inequitable result. The circuit court rightly denied the plaintiff’s application.

By the Court. — - The order of the circuit court is affirmed.