148 Wis. 441 | Wis. | 1912
Lead Opinion
A proceeding to revive an action, as counsel for respondent suggest, is a special proceeding, not one in an action. Voss v. Stoll, 141 Wis. 267, 124 N. W. 89. However, mere form is of little consequence under our system. The substantial, only, count efficiently. So here the mere entitling of the proceeding, as in the action, and sugges
The suggestion that pending the appeal the deceased has ceased to have personal representatives is also immaterial. When the motion was made there were such. The cause was once revived, even if somewhat irregularly, and the order was vacated to enable the personal representatives to be heard. The subsequent termination of their representative character on their own motion, or otherwise, after having been granted the opportunity for a hearing, does not oust the court of jurisdiction to hear the appeal. In case of the order being reversed the cause would go back for such further proceedings as might be appropriate to the case. The personal representatives at the time of the appeal, are still such as regards the matter here.
The ground upon which the order was entered denying the motion to revive is untenable. The cause of action, as the trial court held, is for deceit. That is ruled in respondent’s favor by the decision in the former action. 144 Wis. 506, 129 N. W. 525. There is no difference between the two except, whereas in the first the theory was that the deceit was practiced upon plaintiffs’ assignors prior to the assignment, and plaintiffs took a right to recover their loss as an incident, of the assignment of an interest in the contract, the making of which was induced by fraud; in the second the theory was that the deceit was practiced upon appellants as well as upon their assignors, — upon the former through the latter, by the-procurement of Welch, and thereafter by him directly.
However, the trial court was wrong in holding that a cause of action for deceit does not survive. That is true as the law existed when John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109, was decided, but subsequently, by ch. 353, Laws of 1907, our survival statute was changed to harmonize with that of New York, doubtless for the purpose of avoiding the rule in the Farwell Case.
It seems tbat one need but read tbe statement of facts to be convinced tbat tbe equities as well as tbe law are against tbe motion to revive. Many of tbe reasons assigned in Allen v. Frawley, 138 Wis. 295, 119 N. W. 565, for condemning tbe application to revive are significantly present in this case. Tbe alleged cause was nearly six years old when tbe action was commenced. Tbe previous one was insisted upon for over two years after defendants answered pleading tbe real nature of the first contract, as plaintiffs confessed in effect in tbe complaint in tbe second action, and pleading tbe second
Such obstacles had to be overcome, as indicated in the statement, some of which were apparently thrown in the way by appellants for the purpose of delay, that it was some three years after the discontinuance, during which there were two appeal's to this court with all the usual expenses, before the cause was finally dismissed upon the merits, as this court held it clearly should have been, promptly, upon plaintiffs’ confession, through their attorneys, as before stated.
During the latter part of the long delay Mr. Welch died. The relations of others to the transaction have changed. Some of such others have died. Mr. Welch evidently acted in an agency capacity in all he did. Personal representatives of bfm could not, efficiently, take his place as regards those interested in his estate. The long delay, giving room for this changed situation, is largely attributable to plaintiffs. The radical shifting of position long after the commencement of the first action, putting the adversaries to the large useless expense mentioned, is a strong circumstance against the efforts to revive. By itself it might well be held an efficient estop-pel in the matter.
But above all, this court held in the appeal in the first action that substantially the very matters on account of which
By the Court. — Order affirmed.
The following opinion was filed March 8, 1912:
Dissenting Opinion
(dissenting). The circuit court never exercised its discretion as to whether it would permit the action to be revived. It erroneously placed its decision on the ground .that the action did not survive. The law vests in the trial court a broad discretion as to when it will revive and when it will refuse to revive actions. The law vests in this-court the power to say whether or not the trial court has abused that discretion. The law does not vest in this court the right to exercise the discretionary power conferred on the trial court. If this court could say that it would have been an abuse of discretion for the trial court to have ordered a re-vivor of the action, then it would be proper for this court to affirm the order appealed from. But it has not said so and in fact has said the contrary.
I am authorized to say that Mr. Justice SibbeckeR concurs in the foregoing.