Harris v. Welch , 148 Wis. 441 ( 1912 )

Marshall, J.

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 suggestions in the papers in harmony therewith, must be treated as immaterial and the order appealed from regarded as final in a special proceeding, disregarding all mere informalities.

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.

So if we are to look only to tbe ground upon wbicb tbe motion turned below, a reversal and remand of tbe case for exercise by tbe trial court of its discretion as to whether to grant tbe motion, would be inevitable. .It was formerly tbe case to do so, — to act bere only by wáy of review of tbe original exercise of judicial authority. But latterly a broader conception of tbe letter and spirit of tbe Code bas prevailed. Tbe tendency in that direction is constant. That is to affirm tbe decision complained of, if manifestly right, however untenable may be tbe ground upon wbicb it was rendered below. Estate of Koch, post, p. 548, 134 N. W. 663. Tbat seems to be proper bere; but not because, if tbe court below bad decided otherwise it would bave been erroneous, as an abuse of discretion. Tbat view is not necessary to justify an affirmance bere. If tbe right of tbe matter is clear, if there is such manifestly preponderating probability tbat tbe trial court would bave decided accordingly and entered tbe order appealed from bad it passed upon tbe real vital questions for consideration, then we may, and ought to assume, it would, in such circumstances, bave so decided, and affirm such order upon tbe sole ground tbat it is right, — right regardless of tbe initial grounds therefor. Tbat course tends to put a finish upon litigation when any other would often needlessly reopen matters to further contests, leading to further large private and public expenditure and waste; without any reasonable probability of reaching a more just termination of the matter.

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 contract in settlement of all differences growing out of the former transaction, which, plaintiffs’ counsel after long delay, evidently by fault of plaintiffs themselves, — delay till the trial was actually entered upon, — confessed was true and a perfect defense to plaintiffs’ cause of action, if they ever had any. Even then they sought to keep the confessedly settled matter alive by discontinuing the action instead of having it dismissed upon the merits, doubtless because they appreciated that a judgment on the merits might be fatal to a second action on the theory of the fraud having been perpetrated upon them. They succeeded at first, as indicated in the statement, — an order of discontinuance was entered and then the second action was commenced without closing the first by judgment.

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 recovery was sought in the second, were, as before indicated, settled some two years before commencing the first. Plaintiffs themselves confessed it. . Such first action was disposed of by judgment on such confession and such judgment was duly pleaded in the second action, as we have seen. That does not seem to leave the moving parties any support for their application to revive. So from any viewpoint the order denying the motion is manifestly just. Therefore, it should be affirmed and the long-drawn-out, expensive controversy brought to a final, undisturbable termination.

By the Court. — Order affirmed.

The following opinion was filed March 8, 1912: