Voss v. Stoll

MARSHALL, J. The order did not “terminate the action ■and prevent a judgment from which an appeal might be taken;” satisfying subd. 1, see. 3069, Stats. (1898). Unless it is a “final order affecting a substantial right,” made in a special proceeding; satisfying the next subdivision of the appeal statute, the appeal must be dismissed. The cause of action was one which survives, as appears, under the law of the state where it arose as well as under the law of this state. Sec. 2800, Stats. (1898), provides that “an action does not abate by the death of a party” thereto in such cases as this, but it may be revived or continued in the manner provided in sec. 2803, or that provided in sec. 2810 of the statutes. The words, “shall not abate” in the first section, and the words, “on motion . . . may allow or compel the action to be continued,” etc., in the second section and the terms, “revived or continued” and “stand revived or continued,” in the third section must be construed together. So construed the meaning of the written law is that, in the cdreumstances of this case, till changed by order of the court under the statute, the action is to be regarded as practically dead, though really only [271] in a terminable slumber. That is, the idea of the statutory terms, “shall not abate” but “may be revived” means that though it shall die yet it may live again. That renders logical the doctrine that, in general, any judicial act, in a case of this ■sort, after the death of a party, before the action shall have been revived as to him, is a nullity as regards his personal representative. La Pointe v. O’Malley, 47 Wis. 332, 339, 2 N. W. 632. There the court, in effect, decided that the real .meaning of jhe statute is that, in the circumstances here, the action is not finally but is temporarily abated. Therefore, until it is revived by judicial act, there is no action, strictly ■speaking, in which a motion can be made. So the proceeding required to revive is one outside of any action and for the purpose of restoring to the inanimate thing, as it were, the breath •of life. Such proceeding can only properly be denominated a ■special proceeding under sec. 2596, Stats. (1898). The test to be applied in determining the nature of any .judicial reíhedy, as regards whether it is a special proceeding, is whether it is a mere proceeding in an action, or one independently thereof or merely connected therewith. The latter •two belong to the special class and the other does not. State v. Wis. T. Co. 134 Wis. 335, 113 N. W. 944. The next question is, Was the order final? It was evidently entered after rendition of the opinion which seems to •contain a decision granting the motion to revive. That •opinion and decision, on the face, seem to have left nothing to 'be done to fully restore the action. However, it was followed by a formal order by which the learned court seems to have industriously reserved the question of revival, sufficiently to ■enable him to consider the matter again before finally granting the motion. Why that was done we do not know. We must presume, from the peculiar nature of the order entered, after a judicial declaration in terms reviving, the case, providing that the moving party in a specified contingency might ••apply to the court for an order reviving the case, was the re272 suit of a wise afterthought to take up- the matter again before-finally compelling the foreign party to- litigate in this state. There are a number of indications that the learned court,, after filing the opinion with words of final decision, concluded to merely enter a sort of tentative order, so that if it did not operate to induce the personal representatives to voluntarily appear, a more careful consideration might be given to the matter before applying coercion. It may be that the learned judge discovered that sec. 3267, Stats. (1898), upon which he in part relied, relates to the right of a foreign executor to sue or be sued in the courts of' this state with reference to the property of the deceased therein, and has nothing to do with circumstances as in this case. He may also have come to doubt whether Brown v. Brown, 35 Minn. 191, 28 N. W. 238, dealing with the question of reviving, on motion of a nonresident personal representative of a deceased person, a proceeding to open a default judgment against the deceased, had anything.to- do- with such a situation as he had before him. Again, after rendering the opinion, the peculiar wording of secs. 2803 and 2805, Stats. (1898), in connection with Cavanaugh v. Scott, 84 Wis. 93, 54 N. W. 328, may have more particularly challenged judicial attention to the fact that there-is no absolute right of revival, and, in connection with that, it may have occurred that, possibly, the fact that a nonresident, after sleeping on his rights for some over two- years,, came here to pursue a sick man who was on the verge of insanity, all of whose property and that of another responsible party jointly liable with him was in a foreign state and within easy reach, as well as were the defendants pursued, of such nonresident from his place of residence, and kept up the pursuit after the death of the particular defendant, notwithstanding ample opportunity to litigate his rights in the home jurisdiction of the defendants, where the estate of the particular one was being settled, and without any explanation of such [273] peculiar method, of attack, except that he ivas afraid of the personal influence of the defendants and their friends with the court, in their home jurisdiction; might not, after all, warrant the conclusion that justice required a revival of the action. The principles governing such a situation were not then as plainly found declared in the decisions of this court as they are now in Allen v. Frawley, 138 Wis. 295, 119 N. W. 565. Had they been the learned court would have had a safer guide than the Minnesota case which deals with a situation foreign to the one in hand. All these considerations lead us. to regard the order of the court as intended as merely intermediate, notwithstanding the language in the opinion and decision actually reviving the action. It follows, that though the order in question was entered in a special proceeding, it was not a final order therein and, therefore, the appeal must he dismissed. By the Court. — So ordered.