Johnston v. King

58 N.W. 1105, 88 Wis. 211, 1894 Wisc. LEXIS 14

• Court: Wisconsin Supreme Court
• Decided: October 2, 1894
• Status: Published

Opinion

Newman, J.

The contention in this case is settled by a plain provision of the Bevised Statutes. Sec. 2801, on the subject “ Survival of Actions and Change of Parties,” reads: “ In case of a transfer of interest or devolution of liability the action may be continued by or against the original party, or the court may direct the person to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action or joined with the original party, as the ease may require.” This statute is too plain to admit of construction, and it' is not easy to see how words can make its meaning plainer or more easily understood. It is objected that the plaintiffs transferred their interest in the property and suit to E. Cleary while the action was pending. In such a case the statute reads, “ the action may be continued by or against the original party.” That is precisely what was done in this case. It could not be error. The statute having provided specially for this specific case, it is excepted from the general rule that “ every action must be prosecuted in the name of the real party in interest,” as certainly as the cases excepted in sec. -2605.

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

A motion for rehearing was denied October 2, 1894.