Pereles v. Christensen

164 Wis. 163 | Wis. | 1916

SiebecKER, J.

There is no dispute on the propositions that this cause of action on the note survives the death of the deceased party; that if proper the action may be revived under the provisions of secs. 2803 and 2810, Stats.; and that such an order is appealable. It is suggested that the order of revival is erroneous because the application was not made until more than five years had expired from the time of the commencement of the action, and hence the limitations of sec. 2811a, Stats., apply and operate as a bar to the proceeding. This provision in the statutes is not intended to operate as an absolute bar to proceed in actions after the expiration of five years from the commencement thereof. The statute is clearly permissive in its terms and is to be enforced within the sound discretion of the courts. It has been so interpreted and applied by the courts. Mine v. Grant, 119 Wis. 332, 96 N. W. 796; Smith v. Carter, 141 Wis. 181, 122 N. W. 1035. The proceeding to revive is taken under the provisions of sec. 2803, providing:

“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.”

Tbe proceeding is a special one, and the right to revive is favored in the law when the interest of justice is promoted thereby. The application for revival is therefore one addressed to the sound discretion of the court. Cavanaugh v. Scott, 84 Wis. 93, 54 N. W. 328; Fleming v. Ellison, 124 Wis. 36, 102 N. W. 398; Voss v. Stoll, 141 Wis. 267, 124 N. W. 89; R. G. Uhlmann F. Co. v. Gates, 155 Wis. 385, 144 N. W. 991. It is incumbent on the party seeking relief under this statute to show diligence, good faith, and that his laches, if any, will not operate to the prejudice of the adverse party by having induced a change of condition or relation of the property or parties to the matters involved, or have occasioned the loss of means of presenting the rights of the parties to the court, or otherwise have subjected them to injury and inequity. An examination of the ■ facts and circumstances disclosed by the foregoing statement shows that the delay of the trial of this action was occasioned in the main through the sickness and consequent death of James M. and Thomas J. Pereles and by the fact that the defendant was financially irresponsible up to a time shortly before this proceeding for revival was begun. These facts and circumstances show a reasonably good excuse why the prosecution of the action was delayed. The record also discloses .that defendant alleges a counterclaim far in excess of the plaintiff’s demand, which it is averred could be established only by the oral evidence of defendant and J ames M. Pereles, deceased, and that his death will deprive defendant of such evidence. It appears that the case could not have been brought to trial, after issue joined in August, 1910, prior to the time James M. Pereles died in December, 1910, hence defendant is not prejudiced in the loss of such evidence by the delay of the trial of the case. The facts and circumstances also show that the defendant has not otherwise suffered any inequity by reason of the delay of the trial of the action. It also appears that the defendant failed to bring the case to trial and thus vindicate bis rights to tbe affirmative relief be claims to be entitled to under bis counterclaim in tbe action. He evidently acquiesced in tbe delay and bence occupies no favorable position to urge lacbes against tbe adverse party. Tbe record fully justified tbe ruling óf tbe trial court and no abuse of its discretion is shown.

By the Court. — Tbe order appealed from is affirmed.