146 Wis. 666 | Wis. | 1911
Defendants claim that the dismissal of the former suit begun by plaintiff’s assignor against John and-
In Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1075, there was a judgment of dismissal entered upon a stipulation of the parties. In Fischbeck v. Mielenz, 119 Wis. 27, 96 N. W. 426, it was held tbat tbe withdrawal of a claim presented in assignment proceedings and tbe entry of an order or judgment to tbe effect tbat tbe claim was withdrawn and all proceedings thereon dismissed was in tbe nature of a voluntary nonsuit, and tbat sucb withdrawal did not prevent the claimant from afterwards maintaining an action upon sucb claim. In Spear v. Door Co. 65 Wis. 298, 27 N. W. 60, plaintiff began an action to set aside certain assessments upon real estate. Afterwards tbe property was reassessed. Tbe first action was dismissed and a subsequent action was brought to set aside tbe reassessment. It was held tbat tbe former action was no bar to tbe bringing of another action, partly because it did not appear tbat tbe former action was dismissed by reason of any fault on tbe part of tbe plaintiff, and partly because tbe second action was not upon tbe same cause as tbe first. In Wakeley v. Delaplaine, 15 Wis. 554, there was a judgment of dismissal pursuant to a stipulation of tbe par
It will thus be seen that all the cases cited by plaintiff relate either to the voluntary dismissal of an action or withdrawal of a claim, or to a dismissal pursuant to a stipulation, or to a different cause of action than the one dismissed, or to a mere dismissal for want of prosecution when the case was called. In none of them was sec. 2811a, Stats. (1898), involved. It is undoubtedly the law of this state that a seasonable voluntary dismissal by plaintiff of his cause of action, or a dismissal pursuant to a stipulation, is no bar to the bringing of a subsequent action for the same cause and between the same parties. Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1015. But it does not follow from such a rule that a dismissal pursuant to sec. 2811a has the same effect. Such a dismissal is in invitum and the restdt of at least constructive laches on the part of the plaintiff. Statutes of limitation are of ancient origin. It was early ascertained that injustice and not justice was often meted out in the prosecution of stale claims, and later it was discovered that, though a suit might be seasonably instituted, yet, if it was not seasonably brought to trial, like injustice might result. Hence the enactment in 1891 of sec. 2811a. Speaking.of its purpose this court has said: “It indicates the legislative policy that actions should not be permitted to slumber indefinitely, but that a reasonable time should be allowed within which to prosecute them, and provides a limitation.” Fleming v. Ellison, 124 Wis. 36, 41, 102 N. W. 398. That it was intended as a statute of limitation upon the time within which a suit might be prosecuted is evident both from its language and the rules of law applicable to nonsuits and dismissals existing at the time
It follows that when the suit between plaintiff’s assignor ■and John and August Henseleit was dismissed by the court as to August Henseleit pursuant to the statute, no subsequent •suit involving the same subject matter could be maintained by plaintiff or his privy in interest against August Henseleit.
Tbe result arrived at renders it unnecessary to discuss tbe merits of tbe case. Tbe judgment of dismissal entered by the trial court must be affirmed, but not upon tbe grounds ■therein stated.
By the Gourt. — Judgment affirmed.