124 Wis. 36 | Wis. | 1905
Lead Opinion
The question involved is whether the court erred in denying plaintiffs’ motion to revive and continue the action against the administrator. It does not appear upon what grounds the court below denied the motion, but it is-contended by respondent, first, that the- supplemental complaint on motion to revive changed the action from one in equity to one at law, which could not be done and the action revived against the administrator; and, second, that the plaintiffs were guilty of such laches as to justify the court in denying the application to revive.
1. It is not denied that at the time of the death of Carmichael the plaintiffs had a good cause of action in equity, which survived; but it is contended that because the plaintiffs, in their supplemental complaint, elected to take damages in lieu of specific performance after Carmichael had put it out of his power to perform, this amounted to a change of the cause of action from equity to law, which could not be done and the action continued against the administrator of Carmichael. We think this proposition is untenable. It is well settled that “if a person in good faith brings an action in equity, alleging facts sufficient to constitute a good cause-of action within some recognized principle of equity jurisprudence, hut fails to establish some fact essential thereto, yet does establish a state of facts entitling him to some relief by way of damages or otherwise, the court will not dismiss the bill and thereby render further litigation necessary, but will retain it and render such judgment as will do complete justice between the parties.” Franey v. Warner, 96 Wis. 222, 71 N. W. 81; Gates v. Paul, 117 Wis. 190, 94 N. W.
2. The next question to be considered is whether the plaint
“An action does not abate by the occurrence of any event, if the cause of action survives or continues.”
Sec. 2803, Stats. 1898, provides:
“In case of the death or other disability of a party, if the -cause of action survives or continues, 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 representatives or successor in interest.”
This section is permissive, and not mandatory, but contains no limitation upon the time in which a revival may be had upon supplemental complaint. Sec. 2811a, Stats. 1898, being ch. 119, Laws of 1897, provides, in effect, that the circuit courts and superior courts may dismiss actions which shall notj.be brought to trial within five years from the commencement thereof. This statute was passed after the decisions of this court in Gavanaugh v. Scott, 84 Wis. 93, 54 N. W. 328, where the motion to revive was made eighteen years after the commencement of the action, and Carberry v. German Ins. Co. 86 Wis. 323, 56 N. W. 920, where motion to revive was made about twelve years after the commencement of the action, and indicates the legislative policy that actions should not be permitted to slumber indefinitely, but that a reasonable lime should be allowed within which to prosecute them, and provides a limitation. In the ease at bar the delay was slight. The action was commenced in March, 1900; Carmichael died October 13, 1902; and the respondent has not been prejudiced by delay since the death of Carmichael. The general policy of the law favors the revival of actions and trial on the merits, when the interests' of justice will be promoted and no unnecessary prejudicial laches is shown,. Jones v. Jones, 74 N. Y. Supp. 297; Landis v. Olds, 9 Minn. 90; Plumer v. McDonald L. Co. 74 Wis. 137, 42 N. W. 250; Jones v. Graham,
“Courts of equity, however, are not dependent on statutes of limitation for their right to deny hearing to those who unduly have slumbered on their rights. This power has been-*43 exercised by those courts from tbe earliest times, with no fixed rule, however, as to the lapse of time necessary or sufficient to exclude a suitor from their forum. Very great lapse of time, if reasonably excused and without apparent hurt to the defendant, has been ignored; and, again, very slight delay, accompanied by circumstances of negligence, apparent acquiescence, or change of defendant’s position, has sufficed.”
All the cases proceed upon the theory that laches is not, like limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced— an inequity founded upon some change in the condition or relation of the property or parties. Galliher v. Cadwell, 145 U. S. 368, 12 Sup. Ct. 873. The elements of abandonment and acquiescence are entirely wanting in the case at bar. Neither has there been any change in the respondent’s condition, occasioned by the delay. It is true, he lost the evidence of Carmichael, if that were material, in aid of his defense. The delay during which Carmichael died was induced, or at least contributed to, by the defendant. This loss, if it be a loss, is not chargeable to the plaintiffs.
We are therefore of the opinion that the court below abused its discretion in denying the motion to revive, and that the order should be reversed.
By the Gourt. — Order reversed, and the cause remanded to the court below for further proceedings according to law.
Dissenting Opinion
(dissenting). I take no issue with the proposition that if a plaintiff, who has in good faith brought an action in equity, fails for some reason to establish his equitable right, but shows himself entitled to legal relief, the court will ordinarily retain the action and grant the proper legal relief. I do not consider this principle, however, to be the controlling proposition in this case. It is undisputed here that the plaintiffs knew of Carmichael’s conveyance of the land in question at about the time it took place — i. e., in