Giese v. Giese

• Decision Date: 27 June 1969
• Docket Number: No. 346,346
• Citation: 168 N.W.2d 832,43 Wis.2d 456
• Parties: James E. GIESE, Appellant, v. Ernest R. GIESE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 832

168 N.W.2d 832

43 Wis.2d 456

James E. GIESE, Appellant, v. Ernest R. GIESE et al., Respondents.

No. 346.

Supreme Court of Wisconsin.

June 27, 1969.

After denying a motion to enlarge the time for serving a complaint and granting a motion to dismiss the action for failure to timely serve a complaint, the trial court ordered judgment dismissing the complaint upon its merits.

The plaintiff, James E. Giese, was injured in an automobile accident on July 4, 1964. On June 29, 1967, five days before the expiration of the three-year statute of limitations for the commencement of personal injury actions (sec. 893.205), the plaintiff served a summons on his father, Ernest R. Giese, one of the named defendants. The only other named defendant was National Grange Mutual Insurance Company, the father's insurer. The summons was served upon the insurance company on June 30, 1967.

On July 12, 1967, the attorneys representing both defendants served a notice of special appearance and a demand for the service of the complaint upon the plaintiff's attorneys. Service of the notice and demand was admitted July 12, 1967.

The complaint was verified October 19, 1967, sent to defendants' attorneys October 20th and service admitted by defendants' attorneys on October 25th. The form of admission of service sent by plaintiff's attorneys was 'Due Service of a copy of Complaint Admitted this _ _ day of _ _ 19_ _.' The defendants' attorneys struck the word 'Due,' filled in the date blanks, signed it, and returned it to plaintiff's attorneys.

On May 17, 1968, the defendants served a notice of motion and motion to dismiss the complaint upon its merits for failure to serve it within twenty days of the demand as required by sec. 262.12(1), Stats.

On May 24, 1968, the plaintiff moved to deny the motion to dismiss and filed a counter motion to enlarge the time for serving the answer to October 25, 1967, pursuant to sec. 269.45, Stats.

The trial court heard the motions together, denied the motions of the plaintiff, granted the motion of the defendants, and ordered judgment dismissing the complaint upon its merits.

The plaintiff appeals. Further facts as they appear from the affidavits of counsel will be stated in the opinion.

Graunke & Boone, Wausau, for appellant.

Crowns, Crowns, Merklein & Midthun, Wisconsin Rapids, for respondents.

BEILFUSS, Justice.

From the briefs and arguments of counsel we deem the basic issues to be:

(1) Did the trial court abuse its discretion in denying the motion to enlarge the time to serve the complaint?

(2) Was it prejudicial error to dismiss the complaint upon its merits?

The two principal procedural statutes involved are:

'262.12 Summons, what must accompany when served. (1) Personal Jurisdiction. (a) When personal or substituted personal service is made upon the defendant within this state, a copy of the complaint may or may not be served with the summons at the plaintiff's option. If a copy of the complaint is not served, the defendant, in person or by attorney, within the time fixed in s. 262.10(2), may demand in writing a copy of the complaint, specifying a place, embracing a post-office address, within this state where the complaint may be served and a copy of the complaint shall be served within 20 days thereafter accordingly.'

'269.45 Enlargement of time. (1) The court or a judge may with or without notice, for cause shown by affidavit and upon just terms and before the time was expired, extend the time within which any act or proceeding in an action or special proceeding must be taken, except the time for appeal.

'(2) After the expiration of the specified period or as extended by any previous order, the court may in its discretion, for like cause, upon notice, extend the time where the failure to act was the result of excusable neglect; except the time for appeal.'

The appellant must show an abuse of discretion by the trial court to enable this court to reverse the denial of the motion to enlarge the time to serve the complaint.

'It is well established that the power conferred by sec. 269.45, Stats., is highly discretionary, and the determination of the trial court is not to be disturbed except in cases where it clearly appears that it has been abused. Banking Commission v. Flanagan (1940), 233 Wis. 405, 411, 289 N.W. 647.' Town of Greenfield v. City of Milwaukee (1951), 259 Wis. 101, 104, 47 N.W.2d 291.

The complaint was not served until 78 days after the twenty day period provided for in sec. 262.12, Stats., therefore the trial court's action must be sustained unless the plaintiff has shown cause and excusable neglect as provided in sec. 269.45(2).

Excusable neglect is not synonymous with neglect, carelessness or inattentiveness.

"Excusable neglect' is that neglect which might have been the act of a reasonably prudent person under the same circumstances.' ¹

The affidavit of plaintiff's attorneys in support of his motion to enlarge the time to serve the complaint sets forth the following causes and contends they constitute excusable neglect.

Paragraph six of the plaintiff's attorneys' affidavit is as follows:

'6. That the delay in preparing and serving of the complaint was a result of excusable neglect on behalf of the attorneys for the plaintiff, caused by a press of other legal business, summer vacations, and the fact that the plaintiff herein was not and is not a resident of the County of the attorneys for the plaintiff and further at the time the suit was commenced, the plaintiff was attending a special rehabilitation school in Madison, Wisconsin, which was necessary due to the brain injuries received in the accident, which is the subject of the litigation. This necessitated special arrangements being made to bring the plaintiff to Wausau for the purpose of verifying his complaint.'

The 'press of other legal business' is, at best, a weak cause of excusable neglect. The mere statement, without a persuasive explanation, cannot constitute excusable neglect for a period of 78 days beyond the statutory time limit.

'Summer vacations' without extraordinary explanation can hardly be an excuse for an extended delay in serving the pleadings or processes needed for the orderly administration of justice.

The fact that plaintiff was receiving medical rehabilitation treatment in Madison so as not to be available in Wausau to verify the complaint for a period of 98 days from the demand is not a reasonable excuse. It does not appear that the complaint could not have been sent to him and, if the plaintiff was in fact unable to verify the complaint, his attorney could have done so for him. ²

One of plaintiff's attorneys, in his affidavit, also states:

'5. That your affiant, between the dates of the service of the Summons on the defendants and the date of the service of the Complaint on the attorney for the defendants, had...