Hyslop v. Maxwell

• Court: Wisconsin Supreme Court
• Writing for the Court: BEILFUSS
• Citation: Hyslop v. Maxwell, 223 N.W.2d 516, 65 Wis.2d 658 (Wis. 1974)
• Decision Date: 26 November 1974
• Docket Number: No. 306,306
• Parties: Carolyn HYSLOP, Appellant, v. John W. MAXWELL, Jr., Respondent.

Page 516

223 N.W.2d 516

65 Wis.2d 658

Carolyn HYSLOP, Appellant, v. John W. MAXWELL, Jr., Respondent.

No. 306.

Supreme Court of Wisconsin.

Nov. 26, 1974.

Doar, Drill, Norman & Bakke, New Richmond, for appellant.

W. Dale Phillips, Milwaukee, for respondent.

BEILFUSS, Justice.

Counsel for the plaintiff-appellant basically raises two questions: (1) Whether the reasons asserted for the delay in preparing and serving the complaint constitute excusable neglect under sec. 269.45(2), Stats., ¹ as to entitle the plaintiff to an extension of time; and (2) whether the trial court could rely on a failure to revive the action after the death of the plaintiff.

From the complaint it appears that on December 23, 1969, a radical mastectomy was performed on the plaintiff, Mrs. Hyslop, to treat a malignancy in her right breast. Dr. John W. Maxwell, Jr., was the surgeon in charge of the operation. After the operation, hospital personnel noted that Mrs. Hyslop's right arm was cold and clammy. An operation on December 25, 1969, failed to restore the proper circulation to the arm and it was amputated between the elbow and shoulder on December 27, 1969. In the complaint, Mrs. Hyslop alleged that negligence on the part of Dr. Maxwell, Jr., during the operation caused the condition in her arm which required its amputation.

Chronologically the following transpired:

On December 9, 1971, a summons and a notice of a deposition of Mrs. Hyslop were served on Dr. Maxwell, Jr. The same papers were served on Dr. Maxwell, Sr., the next day.

Because Mrs. Hyslop was in ill health, her deposition was taken on December 21, 1971. Counsel for the defendant appeared at this deposition.

Mrs. Hyslop died on January 24, 1972, of unrelated causes.

On January 27, 1972, a notice of retainer and a demand for a copy of the complaint were served on plaintiff's counsel on behalf of John W. Maxwell, Jr.

On October 10, 1972, the trial judge wrote to the plaintiff's attorney informing him that only a summons was in the court file. He advised the plaintiff's attorney to take default judgment or the matter would be dismissed on November 10, 1972.

In a letter to the trial judge on November 7, 1972, the plaintiff's attorney said that he had difficulty in scheduling a discovery deposition of the defendant and that he expected to file a complaint soon and that he would not move for a default judgment. He requested that the matter be removed from the dismissal calendar for November 10th.

The trial judge again wrote to the plaintiff's attorneys on November 22, 1972. He noted that Mrs. Hyslop was dead and said 'the statutes are clear that there must be a revival of this action if it is to persist.' He also noted that the demand for a complaint was served January 27, 1972; he adjourned the matter until December 29, 1972, and advised he would dismiss the action at that time if a complaint had not been filed. The trial judge stated: 'This serves as your notice that I will dismiss this action on December 29, 1972.'

The complaint was filed in circuit court on December 29, 1972, and received by the attorney for Maxwell, Jr., on January 5, 1973. The trial judge did not dismiss the action on December 29th.

On January 16, 1973, the attorney for Maxwell, Jr., served on the plaintiff's attorney notice that on February 5, 1973, he would move for an order dismissing plaintiff's summons. In an affidavit accompanying the notice of motion, it was made clear that the motion for dismissal was based on the plaintiff's delay in filing and serving the complaint and the plaintiff's failure to ask the court for an extension of time in which to serve the complaint. At the hearing the attorney said the motion was addressed primarily to sec. 269.45, Stats., and the fact the defendant had made a demand for a complaint.

The hearing was held on February 5, 1973, and on February 26th the trial judge ordered the action dismissed as it pertained to John W. Maxwell, Jr. In the order, he noted that Maxwell's motion for dismissal had been based on the plaintiff's delay in serving the complaint after demand had been made.

On March 2, 1973, the plaintiff's counsel filed a motion asking the court to reconsider its February 26, 1973, order dismissing the action. The motion was accompanied by two affidavits: In the first the secretary for the plaintiff's attorney attempted to explain why the complaint was served late; and in the second an attorney involved in the probate of Mrs. Hyslop's estate attempted to explain why the action had not been revived.

A hearing on the motion to reconsider was held on March 19, 1973, and on April 6, 1973, the trial judge ordered the motion be denied.

On April 2, 1973, in the county court for Sawyer county, Alvin Madson was appointed special administrator for Mrs. Hyslop's estate. On April 6, 1973, Madson filed in circuit court for Milwaukee county a petition for the revival of the action in behalf of Mrs. Hyslop's estate.

The plaintiff appealed from the February 26, 1973, order dismissing the action against John W. Maxwell, Jr.; the April 6, 1973, order denying plaintiff's motion to reconsider the first order; and the June 1, 1973, order dismissing the action against John W Maxwell, Sr., and denying the petition to revive.

On December 10, 1973, upon the stipulation of the parties, this court dismissed the appeal as to John W. Maxwell, Sr.

At the February 5, 1973, hearing on the motion to dismiss, the trial judge set forth his reasons for granting the motion. He stated that he felt bound under Giese v. Giese (1969), 43 Wis.2d 456, 168 N.W.2d 832, to grant the motion because the complaint was not served until 11 months after the demand was made. As an additional basis, he cited the fact that the action had not been revived. He pointed out that on November 22, 1972, the plaintiff's attorney was notified that he had to seek revivorship of the action. After discussing the problem of reviving the action, the judge concluded:

'In any event the Giese case controls. The Supreme Court said four months was too long. This is over ten months, probably 11 months. And, the motion of the petitioner here is well taken and I will grant to costs.'

On appeal, the plaintiff has challenged both bases for the trial judge's decision. As for the delay in serving the complaint, the plaintiff contends that the delay was occasioned by reasons constituting excusable neglect under sec. 269.45(2), Stats., so that an extension of time for service of the complaint was warranted. As for revival of the action, the plaintiff points out that the defendant did not ask for dismissal of the action on that ground and argues that under sec. 269.24, Stats., ² an action cannot be dismissed for lack of revival except upon application of the adverse party or a person whose interest is affected.

The case relied upon by both parties and the trial court to resolve the issue of timeliness is Giese v. Giese, supra. In that case the complaint was not served until 78 days over the 20-day period provided for in sec. 262.12, Stats. ³ After receiving the complaint, the defendants moved to dismiss it upon its merits for failure to serve it within 20 days of the demand. The plaintiff moved to deny the motion to dismiss and filed a countermotion to enlarge the time for filing the complaint to the date it was served. The trial court dismissed the complaint on the merits and this court affirmed. We noted the time of the delay in serving the complaint and concluded that the trial court's decision must be sustained unless the plaintiff had shown cause and excusable neglect under sec. 269.45(2).

This court has often stated that an order granting or refusing to grant an extension of time in which to comply with a procedural requirement will not be reversed unless there is a clear showing of an abuse of discretion. ⁴

In the exercise of judicial discretion, the record should reflect that the trial court has considered the relevant factors presented. However, before declaring a trial court has abused its discretion or has not exercised it, we can, and frequently do, review the record ab initio. ⁵

In defense of the trial court here, it must be noted that the plaintiff never made a motion to extend the time for the serving of the complaint as required by sec. 269.45(2), Stats. It is doubtful that the trial court could consider the reasons for excusable neglect without a motion and notice to the adverse party. ⁶

In support of the plaintiff's motion to reconsider, counsel for the plaintiff did file an affidavit of his secretary and of the attorney representing some of the heirs in Mrs. Hyslop's estate. It is argued these affidavits set forth sufficient reasons to constitute excusable neglect. At the first hearing an identical affidavit of the secretary was submitted.

The secretary set forth that she contacted the office of the attorney for Maxwell, Jr., four times in the spring of 1972 to schedule a deposition of...