Merriam v. Horner

66 N.W. 808, 92 Wis. 654, 1896 Wisc. LEXIS 332

• Court: Wisconsin Supreme Court
• Decided: March 27, 1896
• Status: Published

Opinion

Newman, J.

No doubt, it is competent for the court to grant the order of substitution after answer, in a proper case,, in its discretion, for good cause shown. Sec. 2831, B. S., is ample authority. The power given is general and comprehensive. The statute is remedial, and to be favorably construed. The statute (B. S. sec. 2610)¹ which provides for the substitution of defendants in a proper case is also remedial, and is, to be liberally construed, so as to bring within the remedy provided all cases, fairly within its terms, in which this remedy can be beneficially applied. The affidavit •shows a case which is strictly within the terms of the statute; and doubtless the case is, in its facts, within the fair intention of the statute. In substance at least, if not strictly in form, the appellants and Early claim the same debt from ¡the respondent.

By the Oourt.— The order of the circuit courtis affirmed.

1 Sec. 2610, R. S., provides, among other things, as follows: “A defendant against whom an action is pending upon a contract, or for specific real or personal property, or for the conversion thereof, may, at, ■ any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his-, depositing in court the amount of the debt, or delivering the property or its value to such pérson, as the court may direct; and the court may in its discretion make the order.”— Rep.