R. G. Uhlmann Fur Co. v. Gates

Wisconsin Supreme Court

R. G. Uhlmann Fur Co. v. Gates

144 N.W. 991, 155 Wis. 385, 1914 Wisc. LEXIS 13

CourtWisconsin Supreme Court

DecidedJanuary 13, 1914

StatusPublished

Cited by4 cases

This text of 144 N.W. 991 (R. G. Uhlmann Fur Co. v. Gates) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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R. G. Uhlmann Fur Co. v. Gates, 144 N.W. 991, 155 Wis. 385, 1914 Wisc. LEXIS 13 (Wis. 1914).

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Opinion

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'. Oonced-[388]*388ing, 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.

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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'. Oonced-[388]*388ing, 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.

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144 N.W. 991, 155 Wis. 385, 1914 Wisc. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-g-uhlmann-fur-co-v-gates-wis-1914.

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