Gibbs v. Larrabee

| Wis. | Oct 15, 1868

DixoN, O. J.

There can be no arrest in a civil action in this state, except as prescribed by the statute. R. S. ch. 127, § 1. The liability of the defendant to arrest in this action depends altogether upon the words of the statute found in subdivision 1, section 2, of the same chapter, “ where the action is for an injury to person or character.” It is not claimed that the order for arrest can be otherwise sustained, and the only question is whether the action is for an injury to person. It is clearly not an action for an injury to the person' of the plaintiff. Is it an action for an injury t-o the person of the deceased? In Woodward v. The Chicago & Northwestern Railway Co., ante, p. 400, this court said, in reference to actions of this nature, that “ by the common law the death was a bar to any recovery against the guilty or negligent party, and the legislature, by declaring that he shall remain liable to an action notwithstanding the death, may iq some sense be said to have declared that the same cause of action shall survive, though "based on a somewhat dif-fevent principle, and with a right of recovery i/n some respects beyond that which the deceased would home if she had lived.” "What is the real basis of this action ? In the language of the statute by which the action is given, it is “ the pecuniary injury resulting from such death to the relatives of the deceased and it is for such pecuniary or consequential injury, and not for the injury to the person of the deceased, though the remote cause, that the action is brought. We are compelled to hold, therefore, that the action is not one of those specified in the statute, in which an order for arrest may be made, and that the order of the circuit court refusing to vacate the order for the arrest, was erroneous, and must be reversed.

By the Court. — Order reversed.