Plumer v. McDonald Lumber Co.

Taylor, J. It will be seen by the order appealed from that the learned circuit judge denied the relief prayed for by the plaintiff, but refused to grant the relief asked by the defendant, viz., the dismissal of the action. If the plaintiff was not entitled to the relief asked by him. then it would seem that under the provisions of sec. 2811, R. S., the action should have been dismissed. In this case there is no contention that the plaintiff’s cause of action stated in the complaint filed did not survive after his death. It is contended, however, on the part of the learned counsel for the respondent, that as at the time of the death of the plaintiff no complaint had been made or served in the case, there was nothing in the record to indicate whether the action would or wmuld not survive. The fact .that the proceedings in the action at the death of the plaintiff or defendant do not disclose facts showing that the action survives, does not, we think, destroy the right to continue the same in favor of the representatives of the plaintiff or against the representative of the defendant, if in fact the real cause of action survives. Considering secs. 2808 and 2810 together, we think there can be no doubt as to the right of the plaintiff’s representative to revive this action, upon motion, within one year after the death of plaintiff, upon showing by affidavit the death of the plaintiff after the action was commenced, and setting forth in such affidavit the fact that the action was commenced to recover against the defendant upon a cause of action which survives to his representative under sec. 4253, R. S. So we think there can be no doubt but the plaintiff [141] has the right to revive this action upon the facts stated in his sworn complaint, and upon the affidavit of his attorney, unless he is barred of his right by not reviving the action within one year after the death of the plaintiff. The sworn complaint states that the original action was commenced to recover damages for an injury to real and personal property, and so survives under sec. 4253. There is no denial of the facts stated in the complaint. In view of the provisions of secs. 2§03, 2810, 2811, R. S.,1 it is evident that the death of the plaintiff does not dispose of the case finally until the expiration of two years after such death, except, perhaps, in a case where the plaintiff has served his complaint in his life-time and such complaint [142] states only a canse of action which dies with the plaintiff or defendant. This is evident from the provisions of sec. 2811, which gives the defendant, after the death of the plaintiff, the right at any time after such death to apply for and obtain an order dismissing the action, unless the action be revived within the time fixed by the courts. This section was a new section, taken from the New York Code, and placed in the Revision of 1878, so that a defendant might, after the death of a plaintiff in an action which survived, compel a revival of the action within a reasonable time after the death of such plaintiff, or have the case dismissed. Under that section he need not, in any case, await the action of the representatives’ of the plaintiff, either for one or two years after the death of the plaintiff, but may compel the revival within the time fixed by the order of the court, or have the action dismissed. If the complaint had been served in the life-time of the plaintiff, it is not contended that the action could not have been revived after the expiration of one year from the death of the plaintiff, and within the two years prescribed by the statute. It is urged that Avhen the plaintiff has not served his complaint, his time to revive the action is limited to one year, because it is said that in such case there can be no such thing as a supplemental complaint within the meaning of sec. 2803; that it can only be revived by motion, and that motion must be made within a Amar after death. We think this is too narrow a construction of the statute. We think, as there is no special provision of the statute limiting the right to revive an action when the plaintiff has died before he has served his complaint to one year, there should be no such limitation made by the court, especially since sec. 2811 gives the defendant the power to expedite the proceedings if he thinks the representative of the plaintiff is unreasonably dilatory. We think any complaint made by the representative of the deceased plaintiff [143] is a “ supplemental complaint ” within the meaning of the statute. Such complaint, in order to be a good one, must necessarily state facts which have occurred since the commencement of the action, or it would not be a good complaint. It must state the death of the plaintiff, the appointment and qualification of the representative of the deceased, as well as the facts constituting the original cause of action. The new facts occurring after the action was commenced, and which must be stated in the complaint made and filed by the plaintiff’s representative, are necessarily supplemental to the facts necessary to be stated in the complaint made before the death of the plaintiff. This section should be construed in the light of the former practice in chancery to determine what is meant by “supplemental complaint.” Under the old chancery practice every complaint made in the case after the commencement of the action would necessarily be supplemental in some respects to the original complaint, from the fact that the filing of the original complaint was the commencement of the action. The complaint or bill was always filed before process to bring in the defendants was issued or served. As every complaint to revive an action after the death of a party plaintiff in the old chancery proceedings would be in the nature of a supplemental complaint, we think our statute in regard to reviving an action by filing a supplemental complaint should be construed to mean any complaint filed for that purpose after the commencement of the action. By the Gourt.•— The order of the circuit court is reversed, and the cause is remanded with directions to enter an order reviving the action in favor of the plaintiff, and for further proceedings according to law. Footnotes [1] Secs. 2803, 2810, 2811, E. S., are as follows: “Sec. 2803. 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. “ Sec. 2810. Whenever any person shall be entitled to revive or continue any action or proceeding interrupted by the occurrence of death, removal from a trust, or other disability, he may make and file with the clerk a supplemental complaint, affidavit, or petition, as the action or proceeding may be, and thereupon a notice to the other party, or his proper representative, of the time and place of such filing, and that unless he shows cause, if any he have, by answer or affidavit, within twenty days after service of such notice on him, exclusive of the day of service, why such action or proceeding should not be revived or continued, the same will stand revived or continued, according to such supplemental complaint, petition, or affidavit. . . . “ Sec. 2811. At any time after the death of the plaintiff, or after the plaintiff’s marriage, where it affects the rights of either party, the court may, in its discretion, upon notice to such persons as it shall direct, and on the application of the adverse party, or of a person whose interest is affected, make an order that the action be dismissed, unless continued by the proper parties, within a time to be therein specified, not less than three months after the making thereof; and, unless so continued within such time, the same shall stand dismissed thereby, without further order.”