Tarbox v. French

Dixon, C. J. It was held in Stephens v. Magor, 25 Wis. 533, that the remedy given by chap. 363, Laws of [654] 1860, to revive actions, was merely cumulative to that given by sec. 1, ch. 135, R. S., which might still be resorted to, and by which the court, in case of the death, marriage or other disability of a party, is authorized on motion to allow the action to be continued by or against his representative or successor in interest. It would be no great stretch of presumption, perhaps, to hold that the replevin suit in question was continued on motion in favor of the administrator of Waterman, unless the contrary be clearly and positively shown. But, whether this be the presumption or not, it is clear enough that the suit was in fact continued and prosecuted to final judgment by and with the knowledge and consent of the administrator, and with the consent and approbation of the court, either with or without a motion for its continuance in the name of the administrator having been formally made and granted by the court. Suppose no motion was formally made and granted: what then was the effect upon the suit and the judgment which was obtained against the administrator? Was the court without jurisdiction, and the judgment void ? Was it a judgment against the administrator as the representative of the deceased, and did it bind the estate ? If the court was without jurisdiction, and the judgment void, or if it was not a judgment against the administrator in his representative capacity, and so did not bind the estate, it must have been merely for want of a motion and order in form continuing the action in favor of the administrator. The substance of the statutory requirement was in reality complied with. There was the application of the administrator to continue and prosecute the suit in his representative capacity. He did so continue and prosecute it. The defendant in the suit appeared and prosecuted his claim to the property against the administrator as such, and recovered a judgment for it. All this was done with the knowledge and approbation of the court. Shall the absence of a motiqn [655] and order be said to vitiate and nullify the proceedings and judgment thus had and rendered ? Or shall they not rather be said to be in all respects as valid and effectual as if the motion and an order continuing the action in the name of the administrator had been formally made and entered? The statute provides that the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. R. S. ch. 125, § 40. That is where the proceeding is direct or in the action itself, to take advantage of the error or defect, or to set aside or reverse the judgment; and for still stronger reason should the same rule prevail where the objection comes up collaterally, as in this instance. We are of opinion that the judgment was not void, nor so erroneous, even, that it could have been reversed or vacated; and that it was against and bound the administrator as such, and the estate and property of the deceased which he represented. See Knox v. Bigelow, 15 Wis. 423. The foregoing remarks dispose of all the objections taken in behalf of the defendant in error, who was the defendant below, save that there should have been an execution issued on the judgment for a return of the property, and an effort made in that way to obtain it, before bringing suit against the defendant in error upon his undertaking. The undertaking required nothing of the kind. The condition of that was, to return the property if_ return thereof should be adjudged. Such return was adjudged to the plaintiff in error, but was never made. That constituted a breach' of the condition, and a good cause of action against the defendant in error. The judgment should be reversed, and a venire de novo awarded. By the Court. — It is so ordered.