Allen v. Frawley , 138 Wis. 295 ( 1909 )

The following opinion was filed January 5, 1909:

Dodge, J.

The first error assigned and argued is upon the order of the court made September 19, 1904, reviving and continuing the action against Lydia A. Frawley as executrix of T. F. Frawley, who died Juné 30, 1902. This is assailed, first, on the ground that the cause of action did not survive; and, secondly, that even if it did, it was an abuse of discretion to revive and continue the action. The complaint is very ambiguous, and it is by no means easy to reach a conclusion whether the pleader stated or attempted to state anything more than a cause of action at law against T. E. Erawley for deceit and fraud resulting in damages by depletion of the estate in the hands of Buffington-as receiver. If so limited, of course the action would not survive. John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109; Lane v. Frawley, 102 Wis. 373, 78 N. W. 593; Killen v. Barnes, 106 Wis. 546, 82 N. W. 536; Lindemann v. Rusk, 125 Wis. 210, 104 N. W. 119. In view, however, of the conclusion we have reached upon the second ground of attack we shall deem it unnecessary to decide whether the complaint, upon liberal construction, may not be deemed to attempt to charge T. E. Erawley with at least complicity in the control of some property alleged to have been wrongfully diverted from the trust property in the hands of the receiver, but shall proceed upon the assumption, hypothetically, that it does.

An application to a court of equity to revive and continue an action when interrupted or abated by the death of a party is an appeal to the wise judicial discretion of the court. Cavanaugh v. Scott, 84 Wis. 93, 54 N. W. 328; Carberry v. German Ins. Co. 86 Wis. 323, 56 N. W. 920; Fleming v. Ellison, 124 Wis. 36, 102 N. W. 398; Jones v. Jones, 68 App. Div. 5, 74 N. Y. Supp. 297; affirmed, S. C. 171 N. Y. 653, 63 N. E. 1118. It should seldom be granted where unnecessary to the applicant (Robinson v. Bank of Pikeville, 108 Ky. 389, 56 S. W. 660); nor when the the burden cast upon the other party thereby will grievously preponderate over the benefits to the applicant (Lyon v. Park, 111 N. Y. 350, 18 N. E. 863; Cavanaugh v. Scott, supra); nor where delay and laches have intervened so as to place the defendant at serious disadvantage, and usually not where such delays have permitted a statute of limitations to run against the original demand (Beach v. Reynolds, 64 Barb. 506; Jones v. Jones, supra; St. Paul, M. & M. R. Co. v. Eckel, 82 Minn. 278, 84 N. W. 1008; Ex parte Kirtland, 49 Ala. 403)

Tbe cause of action set forth was predicated upon personal conduct of T. E. Erawley occurring in 1897. It also involved fraudulent intent, which rested in large measure on Erawley’s asserted knowledge of facts in regard to character and value of the Kansas and Nebraska tax claims, most of' which he acquired by personal inspection, investigation, and. conference with people in those localities, and of which thereafter only he himself had full knowledge, and as to which the-evidence must have grown more and more difficult of discovery, and less and less certain in character, as time elapsed, and especially must the ability of his widow to find defensive-evidence, after his death, have been impaired by such delay. Upon the allegations of the complaint before the court all of the property for which Erawley’s estate is now held accountable was owned by a corporation-situated at Eau Claire, a party to the suit, excluded from any defense as an innocent holder, and from which, therefore, the very property belonging to the estate could be reclaimed and reinstated in the-hands of the receiver. Of course the court might at any time have placed such embargo upon any disposal or other change of condition of that property as was necessary to protect the rights of the parties. Nothing was apparent to indicate any insolvency or other difficulty in recovering from the corporation the proceeds or value of any of the property of which it might dispose. The complaint negatived the possession of any such property or its proceeds, by Erawley, and if he were in any way liable to a money judgment as a result of his complicity, his estate was being administered in the county of Eau Claire, so that a claim in the ordinary course of administration could easily have been-presented. At the time of' T. E. Erawley’s death in June, 1902, the plaintiffs had allowed five years to elapse after the acts on which his liability was predicated, and, while they made a formal motion within a few months after his death for the revival, that motion was. allowed to drop out of consideration and to remain, undisposed of until by reason of a decision of this court (Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909) it was made apparent that if a cause of action existed against Erawley for an accounting it might be enforced in the present action. In all practical aspects the situation was the same as if a new motion to revive had been made in Sejitember, 1904. The result was that at the time the court acted upon the question of revival the cause of action for fraud, whether equitable or legal, had been postponed some seven years from its inception. It was one subject to the six-years statute of limitations. Boyd v. Mut. F. Asso. 116 Wis. 155, 90 N. W. 1086, 94 N. W. 171; Buttles v. De Baun, 116 Wis. 323, 93 N. W. 5. At that time it was apparent to the court that the presence of Erawley’s estate or executor as a party defendant was entirely unnecessary to the doing of complete equity and justice by returning to the hands and control of the receiver all the property which it is now found that Erawley participated in diverting from the estate; that if any money judgment against Erawley was essential to such relief it might have been sought and obtained by ordinary legal processes without resort to the peculiar jurisdiction of equity. It was apparent, too, that the full time prescribed by statutes of limitation for instituting a suit upon that cause of action had run. There was also apparent the very serious inconvenience and burden to an estate from keeping alive the uncertainty resulting from such a claim pending the litigation over the very numerous matters involved in this complicated closing-up suit, and through and at the bottom of all this was obvious extreme dilatoriness on the part of the plaintiffs, whereby the situation had arisen which was in large part unexplained and unexcused, although certain portions of the delay were attempted to be accounted for by more or less legitimate considerations.

We cannot escape the conviction that in the presence of such laches it was an abuse of judicial discretion to revive the present action against the estate of T. F. Frawley, so seriously to the burden of his representatives and with such peril of injustice to them, without any corresponding necessity to the plaintiffs or threatened loss of any of their rights which they might not have fully preserved by exercise of reasonable diligence. Error was thus committed but for which the portion of the judgment appealed from, or any judgment against the appellant, could not have been rendered. We therefore do not pass upon the question whether the evidence suffices to establish the fraud alleged.

By the Gourt. — The portion of the judgment appealed from is reversed, and cause remanded with directions to dismiss the action as against appellant.