R. G. Uhlmann Fur Co. v. Gates

ViNJE, J. That tbe order of revival is appealable was held in Voss v. Stoll, 141 Wis. 267, 124 N. W. 89. That tbe application to revive was addressed to tbe sound discretion of tbe trial court;, and that this court will not interfere with its action thereon unless there has' been an abuse of discretion, is tbe settled law of this state. Harris v. Welch, 148 Wis. 441, 447, 134 N. W. 1041. Plaintiff claims it bad a right to refrain from prosecuting tbe action during tbe pendency of tbe divorce suit'. Oonced388 ing, but not admitting, such right, it appears that the divorce was granted December 12, 1908. The defendant did not die till August 25, 1911, and the motion to revive whs not made until April 8, 1913, after a motion to dismiss for want of prosecution had been made. The delay from December 12, 1908,, until the death of the defendant remains wholly unexplained. It is apparent from the issues in the case that the defendant alone was in a position to make any defense to the claims made by the complaint, and that, practically, the defense died with him. Under such circumstances, and in view of the facts in the case, it was an abuse of discretion to revive the action. The decision in Allen v. Frawley, 138 Wis. 295, 119 N. W. 565, rules this case. By the Court. — Orders appealed from reversed, and cause remanded with directions to grant the motion to dismiss.