Illinois Steel Co. v. Rogall

149 N.W. 394, 159 Wis. 214, 1914 Wisc. LEXIS 398

• Court: Wisconsin Supreme Court
• Decided: November 17, 1914
• Status: Published

Opinion

Wikslow, C. J.

In this case it is held:

1. The action of ejectment does not survive the death of the sole defendant and occupant of the premises (Farrall v. Shea, 66 Wis. 561, 29 N. W. 634), hence it cannot be revived against heirs at law or personal representatives claiming only as such. The motion, therefore, was properly denied so far as the heirs at law of Martin Warras are concerned.

2. As soon as Martin Warras in his lifetime transferred his interest to the Bogalls and they took possession Warras became a mere nominal party and the Bogalls became the real parties in interest liable to be made defendants at any time, under sec. 2801, Stats. Manifestly the death of a mere nominal party could not impair the plaintiff’s right to have the real parties in interest made defendants. Therefore the court should have ordered the Bogalls to be brought in as defendants and the action to continue as to them.

By the Court. — That portion of the order refusing to revive the action as to the heirs at law of Martin Warras and Mary Rogall (mother of Joseph Bogall) is affirmed with $25 costs, and the remainder of the order is reversed and the action remanded with directions to enter an order bringing'in Joseph Bogall and Mary, his wife, as defendants, and continuing the action as to them. Plaintiff to recover against the'Bogalls last named the fees of the clerk of this court.¹