Brickner v. Kopmeier

113 N.W. 414, 133 Wis. 582, 1907 Wisc. LEXIS 15

• Court: Wisconsin Supreme Court
• Decided: December 13, 1907
• Status: Published

Opinion

Tbe following opinion was filed October 15, 1907:

Cassodat, O. T.

1. Tbe return on tbe appeal from- tbe justice -was filed in tbe circuit court February 15, 1906. Tbe cause was not brought to a bearing in tbe circuit court during its April term nor July term, 1906. Tbe statute declares that, if the appeal is not brought “to a bearing in tbe appellate court before the end of tbe second term after filing tbe return of tbe justice therein, such court shall dismiss tbe appeal, unless it shall continue the same by special order for cause shown.” See. 3766, Stats. (1898). In construing tbe language thus employed this court has held that “the power to so continue the cause may be exercised after tbe end of tbe second term.” Whitham v. Mappes, 89 Wis. 668, 62 N. W. 430. In reaching such conclusion reference is there made to another section [sec. 2831] of tbe statutes, which provides that, except as otherwise prescribed, tbe court may, in its discretion, on good cause shown, allow any proceeding in an action to be taken after the time limited by statute or by any order of court has expired. Here, as indicated in the foregoing statement, upon cause shown by the defendant and upon his payment of costs imposed, the trial court refused to dismiss the appeal and ordered the cause to stand for trial at the then 1906 October term. We cannot say that there was any abuse of discretion in making such order.

2. So the court, upon such showing, properly allowed the defendant to put in a demurrer substantially like the one he had filed with the justice who had overruled the same.

3. Error is assigned because the trial court sustained the demurrer to the complaint. As indicated in the statement the plaintiffs are husband and wife. The complaint states two separate causes of action: one for personal injury to the wife, and the other for damages to the husband as a result of such injury. The trial court sustained the demurrer to the complaint on the grounds that several causes of action had been improperly united and that there was a defect and misjoinder of parties plaintiff. Counsel contend that the right to join such two causes of action in the same complaint is expressly given by the section of the statutes which declares:

“In any action by husband and wife to recover damages for any injury to the person of the wife sustained by or through the act, procurement or negligence of the defendant, or for which the defendant is liable, the plaintiffs may claim in the complaint, and prove and recover, all the damages sustained by both, and which might otherwise be recovered by separate actions.” Sec. 2680, Stats. (1898).

This section must “be construed as a continuation” of the same section in the Revised Statutes of 1818, and not as a new enactment in the revision of 1898. Sec. 4985, R. S. 1818 and Stats. 1898. So construed it will be observed that sec. 2680 relates to the recovery of “damages for an injury to the person of the wife.” Such “injury to the person of the wife,” as the law then stood, resulted in damages to the husband for loss of service and medical attendance, and so the section provided that “all the damages sustained by both” husband and wife for such “injury to the person of the wife” might be recovered in the same action. Numerous cases of that kind are cited in Shanahan v. Madison, 57 Wis. 276, 281, 15 N. W. 154. As there stated, such an action was under the control of the husband, and the damages collected belonged to him.

Prior to 1881 a married woman was authorized to “sue in her own name, and shall have all the remedies of an unmarried woman in regard to her separate property or business, and to recover the earnings secured to her” by the statutes then in force. Sec. 2845, R. S. 1878. That section was amended so as to authorize a married woman to “bring and' maintain an action in her own name for any injury to her person or character the same as if she were sole,” and making-any judgment recovered in such action her “separate property and estate.” Oh. 99, Laws of 1881. That statute has-remained in force ever since. Sec. 2345, Stats. (1898). That act “took from the husband all right to or control over such action and all right to or interest in any judgment recovered therein.” Shanahan v. Madison, 57 Wis. 276, 15 N. W. 154. Under it this court held, soon after its enactment, that “a cause of action for an injury to the person or-character of a married woman cannot be united in the same-complaint with a cause of action for the husband’s loss of services and expenses in consequence of such injury, notwithstanding the action is brought in the name of both husband and wife.” Id. There has been no departure in this. court from the ruling thus made. . McLimans v. Lancaster, 63 Wis. 596, 23 N. W. 689; Fife v. Oshkosh, 89 Wis. 540, 544, 545, 62 N. W. 541; Selleck v. Janesville, 104 Wis. 570, 577, 80 N. W. 944; Green v. Nehagamain, 113 Wis. 508, 515, 89 N. W. 520; Boyd v. Mut. F. Asso. 116 Wis. 155, 176, 90 N. W. 1086, 94 N. W. 171. It follows that-the demurrer to the complaint was properly sustained.

By the Court. — The judgment of the circuit court is affirmed.

A motion for a rehearing was denied December 13, 1907.,