Carberry v. German Ins. Co.

• Citation: 86 Wis. 323,56 N.W. 920
• Parties: CARBERRY v. GERMAN INS. CO. HODGSON v. GERMAN INS. CO.
• Decision Date: 07 November 1893
• Court: United States State Supreme Court of Wisconsin

86 Wis. 323

56 N.W. 920

CARBERRY

v.GERMAN INS. CO.

HODGSON

v.GERMAN INS. CO.

Supreme Court of Wisconsin.

Nov. 7, 1893.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Andrew Carberry and Esther E. Hodgson against the German Insurance Company on a fire insurance policy issued to Carberry, and providing that the loss, if any, shall be paid to Hodgson, mortgagee. Before trial Carberry died, and the action was continued by plaintiff Hodgson alone. From a judgment for defendant, plaintiff appeals. Affirmed. From an order denying an application by James A. Carberry, administrator of the estate of Andrew Carberry, deceased, to revive the action, made after such judgment was rendered, the administrator appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that December 6, 1877, one Andrew Carberry, since deceased, owned a dwelling house in Pewaukee; that on that day he procured from the defendant a policy of insurance on the same, whereby, in consideration of a sum therein named, the defendant insured him against loss or damage by fire to the amount of $1,000, “loss, if any, payable to Esther E. Hodgson, mortgagee;” that said company thereby agreed to make good unto the said assured, his executors, administrators, and assigns, all such immediate loss or damage, not exceeding the sum named, as should happen by fire, between December 6, 1877, and December 6, 1878; that August 21, 1878, said property so insured was totally destroyed by fire; that April 27, 1879, the assured's last proofs of loss were furnished to the defendant; that August 14, 1879, an action was commenced by the said Andrew Carberry and Esther E. Hodgson against this defendant in the circuit court for Waukesha county to recover such insurance; that October 10, 1879, the defendant demurred to the complaint for insufficiency; that June 21, 1880, such demurrer was overruled; that said order overruling the same was reversed, March 24, 1881, (51 Wis. 605, 8 N. W. Rep. 406;) that in February, 1882, the said Andrew Carberry and Esther E. Hodgson served an amended complaint in said action; that March 18, 1882, the defendant answered the said amended complaint upon the merits; that May 22, 1882, a jury in said action was waived by stipulation; that August 11, 1882, by leave of the court, the said Andrew Carberry and Esther E. Hodgson amended their amended complaint therein; that September 5, 1882, the defendant answered said last-named amended complaint; that December 5, 1882, the venue in said action was changed to Milwaukee county; that during the following six years several motions and proceedings therein were had and taken, unnecessary to be repeated here; that December 26, 1888, the said Andrew Carberry died intestate; that February 17, 1891, the said James A. Carberry was appointed administrator of his estate, and thereupon qualified as such; that January 19, 1892, the cause was tried without being revived as to said deceased, and at the close of said trial the court ordered the amended complaint to be dismissed; that the costs were thereupon taxed, and judgment was thereupon entered in favor of the defendant and against the said Esther E. Hodgson, dismissing said amended complaint, and for $38.36 costs and disbursements; that in February, 1892, the said James A. Carberry, upon affidavits, procured an order to show cause why the said judgment should not be set aside and the complaint amended so as to revive the cause on the part of the said Andrew Carberry in the name of the said James A. Carberry as such administrator; that the defendant opposed said application, and April 22, 1892, the same was denied by the court; that thereupon the said James A. Carberry, as such administrator, applied to the court for leave to file a supplemental complaint as such administrator, and to prosecute said claim; that April 27, 1892, the defendant opposed the same by affidavits, and that January 28, 1893, the court made an order denying the application to set aside said judgment and allow said supplemental complaint to be filed and the claim to be prosecuted by the said James A. Carberry; that January 20, 1893, the said Esther E. Hodgson appealed from said judgment so entered January 26, 1892, and the said James A. Carberry appealed from said order of January 28, 1893.P. H. Carney and Turner & Timlin, for appellants.

Cotzhausen, Sylvester & Scheiber, for respondent.

CASSODAY, J., (after stating the facts).

At the time the policy was procured Mrs. Hodgson held a mortgage on the premises, given September 6, 1876, for $600. That mortgage was a considerable less than the amount of the insurance. The property insured being real estate, there can be no question but what the mortgage was a mere lien, and that the mortgagor, Andrew Carberry, was the absolute...