Carberry v. German Insurance Co.

Cassoday, J. At the time the policy was procured Mrs. Hodgson held a mortgage on the premises, given September 6, 1876, for $600. That mortgage was considerably less than the amount of the insurance. The property insured being real estate, there can be no question that the mortgage was merely a lien, and that the mortgagor, Andrew Carberry, was the absolute owner of the premises and had an insurable interest therein to the extent of their value, notwithstanding the mortgage. Cayon v. Dwelling House Ins. Co. 68 Wis. 510. It is, moreover, well settled that Mrs. Hodgson, as' mortgagee, was absolutely bound by any and all the stipulations in the policy. Gillett v. L. & L. & G. Ins. Co. 73 Wis. 203; Blake Opera House Co. v. Home Ins. Co. 73 Wis. 670; Meiswinkel v. St. Paul F. & M. Ins. Co. 75 Wis. 156; Continental Ins. Co. v. Hulman, 92 Ill. 145. It follows that whatever may have been said or done by Andrew Carberry as such owner which might operate to defeat the policy would be equally available as a defense against any claim made against the company by Mrs. Hodgson. Ibid. This being so, it is very manifest that Andrew Carberry was a necessary party to the action, and that he and Mrs. Hodgson were properly joined as plaintiffs when the action was originally commenced. Hammel v. Queen Ins. Co. 50 [327] Wis. 244. The action so commenced was pending for more than nine years before the death of Andrew Carberry. He had been dead for, more, than three years before the cause came on for trial, and it was then tried without ever having been revived as to his representatives and with Mrs. Hodgson as sole plaintiff. Prior to such trial her mortgage had been foreclosed, and she had thereby realized a considerable portion of her claim; and of course the balance of it belonged to the estate of the deceased. It is contended that the wording of the policy, as mentioned in the foregoing statement, would have justified Mrs. Hodgson, as “a trustee of an express trust,” to commence and prosecute the action in her own name, without joining Andrew Carberry; and hence that she had the legal right to prosecute the same after his death without being revived in the name of his representative. But we do not think the wording of the policy brings the case within the section of the statute relied upon,— sec. 2607, K. S. .The agreement in the policy is to make good unto Andrew Carberry, his executors, administrators, and assigns, all such loss or damage, not exceeding the sum named. The words, “loss, if any, payable to-Esther E. Hodgson, mortgagee,” must be construed with reference to the general purpose and import of the policy ; and, so construed, it is very obvious that the policy was given primarily to insure Andrew Carberry, and only so much was made payable to Mrs. Hodgson as her interest might be. Indeed, the original complaint and the several amended complaints are all on that theory. Since her claim was subject to any and all defenses available against Andrew Carberry, and since the defendant could not make-such defenses without the presence of Andrew Carberry, or his representative, as a party, it was obvious that the trial court was right in holding that Mrs. Hodgson could not maintain the action as sole plaintiff., Thatch v. Metropole Ins. Co. 11 Fed. Rep. 29; Hartford F. Ins. Co. v. Haven [328] port, 31 Mich. 609; Shove v. Shove, 69 Wis. 425. The judgment of the circuit court on her appeal is affirmed. The question recurs whether the court improperly refused to allow the action to be revived on the application of the administrator. As indicated in the foregoing statement, he was not appointed until more than two years after the death of Andrew Carberry, and the application was not made until more than three years after his death, nor until after the trial and judgment against Mrs. Hodg-son. The statute provides, in effect, that in case of the death of a party, if the cause of action survives or continues, the court, on motion, at any time withrn, one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representatives or successor in interest. Sec. 2803, R. S. The question presented has recently received the careful consideration of this court. Cavanaugh v. Scott, 84 Wis. 93. It was there in effect held that the court is at liberty, in the exercise of a sound discretion, to grant or refuse such application according to the peculiar circumstances of each particular case; that an unexplained and unexcused neglect to proceed for an unreasonable period, whereby the other party has or may have lost his means of defense, would justify such refusal; that such laches may consist in long delay and gross neglect to proceed in the action, before as-well as after the death of the party; but that the mere lapse of time which the court can see will not operate prejudicially to the opposite party, and not amounting to a statutory bar, will not afford ground for the denial of such application. The reasons for so holding and the authorities in support of the same are sufficiently given in the opinion of Mr. Justice PiNNey in the case cited. The same principle as to laches has frequently been affirmed by our highest federal court. Bryan v. Kales, 134 U. S. 126; Galliher v. Cadwell, 145 U. S. 368; Johnston v. Standard M. Co. [329] 148 U. S. 360. From a careful examination, of the record we are constrained to hold that there was no abuse of discretion in refusing the application of the administrator. The order of the circuit court on James A. Oarberry's appeal is affirmed. By the Oourt.— Ordered accordingly.