Siedenburg v. Severson

Wisconsin Supreme Court

Siedenburg v. Severson

183 N.W.2d 35, 50 Wis. 2d 40, 1971 Wisc. LEXIS 1165

CourtWisconsin Supreme Court

DecidedFebruary 2, 1971

Docket82

StatusPublished

Cited by5 cases

This text of 183 N.W.2d 35 (Siedenburg v. Severson) 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.

Bluebook

Siedenburg v. Severson, 183 N.W.2d 35, 50 Wis. 2d 40, 1971 Wisc. LEXIS 1165 (Wis. 1971).

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Opinion

Wilkie, J.

A single issue is presented on this appeal: Did the trial court abuse its discretion in denying appellant’s motion to dismiss respondent’s complaint wherein she changed her capacity as plaintiff from personal to special administratrix?

There was no abuse of discretion. The order must be affirmed. Respondent is clearly entitled to bring the action either in her own behalf or as personal representative of the decedent. 1 The required affidavit 2 supporting the noticed discovery needed in order for plaintiff-respondent to plead is not a pleading but is merely a statement of “the general nature and object of the action or proceeding.” 3 The entire purpose of this discovery procedure would be negated if a plaintiff were required to conform his complaint precisely to the affidavit. Here, too, the complaint alleged several alternative causes of action. There was no changing or adding “causes of action.”

Appellant has shown no prejudice by respondent’s serving of the amended summons and the complaint. There certainly can be no claim of surprise, when it was the discovery examination which enabled the respondent to formulate her pleading.

Furthermore, a trial court, in its discretion, 4 may permit the amendment of “any process, pleading or proceeding” and may do so “at any stage of any action.” 5 This provision is to be liberally construed. 6

*43 The trial court’s decision to allow such an amendment will not be disturbed by this court except for abuse of such discretion. 7 There was clearly no abuse of discretion here. The trial court obviously concluded, as we do, that the complaint served was in compliance with its order of May 5,1969.

By the Court. — Order affirmed.

1

Sec. 896.04 (1), (6), Stats.

2

Sec. 887.12 (6), Stats.

3

Id.

4

Girtz v. Oman (1963), 21 Wis. 2d 504, 509, 124 N. W. 2d 586.

5

Sec. 269.44, Stats.

6

Wipfli v. Martin (1967), 34 Wis. 2d 169, 148 N. W. 2d 674.

7

Girtz v. Oman, swpra, footnote 4.

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Wilkie, J.

A single issue is presented on this appeal: Did the trial court abuse its discretion in denying appellant’s motion to dismiss respondent’s complaint wherein she changed her capacity as plaintiff from personal to special administratrix?

There was no abuse of discretion. The order must be affirmed. Respondent is clearly entitled to bring the action either in her own behalf or as personal representative of the decedent. 1 The required affidavit 2 supporting the noticed discovery needed in order for plaintiff-respondent to plead is not a pleading but is merely a statement of “the general nature and object of the action or proceeding.” 3 The entire purpose of this discovery procedure would be negated if a plaintiff were required to conform his complaint precisely to the affidavit. Here, too, the complaint alleged several alternative causes of action. There was no changing or adding “causes of action.”

Appellant has shown no prejudice by respondent’s serving of the amended summons and the complaint. There certainly can be no claim of surprise, when it was the discovery examination which enabled the respondent to formulate her pleading.

Furthermore, a trial court, in its discretion, 4 may permit the amendment of “any process, pleading or proceeding” and may do so “at any stage of any action.” 5 This provision is to be liberally construed. 6

*43 The trial court’s decision to allow such an amendment will not be disturbed by this court except for abuse of such discretion. 7 There was clearly no abuse of discretion here. The trial court obviously concluded, as we do, that the complaint served was in compliance with its order of May 5,1969.

By the Court. — Order affirmed.

1

Sec. 896.04 (1), (6), Stats.

2

Sec. 887.12 (6), Stats.

3

Id.

4

Girtz v. Oman (1963), 21 Wis. 2d 504, 509, 124 N. W. 2d 586.

5

Sec. 269.44, Stats.

6

Wipfli v. Martin (1967), 34 Wis. 2d 169, 148 N. W. 2d 674.

7

Girtz v. Oman, swpra, footnote 4.

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183 N.W.2d 35, 50 Wis. 2d 40, 1971 Wisc. LEXIS 1165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siedenburg-v-severson-wis-1971.

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