State ex rel. Forrestal v. Eschweiler

• Decision Date: 17 June 1914
• Citation: 147 N.W. 1008,158 Wis. 25
• Parties: STATE EX REL. FORRESTAL ET AL. v. ESCHWEILER, CIRCUIT JUDGE (TWO CASES).
• Court: Wisconsin Supreme Court

158 Wis. 25

147 N.W. 1008

STATE EX REL. FORRESTAL ET AL.

v.ESCHWEILER, CIRCUIT JUDGE (TWO CASES).

Supreme Court of Wisconsin.

June 17, 1914.

Mandamus action to compel F. C. Eschweiler, Judge of the Circuit Court for Milwaukee County, to dismiss the action of Emma Sellers, as administratrix of the estate of Joseph Sellers, deceased, against Charles M. Forrestal and W. K. Downey, pending in said court, and like proceedings for similar relief in the action of William Bray against the same defendants, also pending in said court. Proceedings dismissed.

The deceased and Bray were injured by the explosion of a boiler while they were in the performance of their duties as employés of Forrestal and Downey. Mr. Sellers died from his injuries. The two actions were commenced to recover damages. They were tried, resulting in a judgment against defendants in each case. Judgments were rendered accordingly from which appeals were taken to this court, resulting in both judgments being reversed November 19th, 1912. The actions not having been brought on for retrial nor any proceedings had therein in the circuit court within one year after the reversals, motions were made on behalf of the defendants for dismissals under section 3072, Stats.

Pending the decision of such motions applications were made by plaintiffs for continuance of the actions. On the showing made on such motions the applications to dismiss were denied, while those of plaintiffs were granted upon the ground that defendants had waived the statutory privilege of having the actions dismissed and were estopped by their conduct from insisting that plaintiffs were at fault in delaying the time of retrial. Thereupon alternative writs of mandamus were duly issued out of this court to compel the circuit judge to dismiss the actions, or show cause to the contrary.

The petitions for the writs showed the statutory requisites for dismissal. The circuit judge made due return thereto, showing his reasons for refusing to dismiss. Such reasons were brought to his notice by affidavits on behalf of plaintiffs and were opposed by affidavits on behalf of defendants. Such affidavits established, or tended to establish, these facts:

Upon the trial of the actions it pretty satisfactorily appeared, and largely by the testimony of Professor Cooley, Dean of the College of Engineering of the University of Michigan, who resided at Ann Arbor in said state,--that the bursting of the boiler was caused by a structural defect for which the manufacturer,--the Fairbanks Steam Shovel Company,--as was supposed, might be held responsible. It was important to respondents to have such manufacturer as a defendant in each action, particularly because of improbability of a judgment against the employer being collectible. It was likewise important for the latter to have the manufacturer before the court so as to settle the whole controversy in one trial. Both sides desired to have Professor Cooley attend upon a second trial as a witness. Therefore, soon after the reversals, negotiations were commenced between the attorneys for the parties in respect to bringing in the Shovel Company as defendant in each action and sharing the expense of securing the presence of Professor Cooley as a witness. The clerk's fees in the appellate court were paid and a return of the records to the circuit court seasonably secured. The negotiations aforesaid continued for a considerable length of time, the attorneys for plaintiffs relying on the attorneys for defendants continuing to co-operate, to effect, in accomplishing what seems to be for the mutual interests. The efforts in that regard caused delay in pressing for a new trial. There was some uncertainty in the minds of the attorneys for the respective parties as to the proper course to pursue to bring in the Shovel Company, but responsibility in regard to the matter was cast on the attorneys for plaintiffs. They finally prepared an amended complaint, setting forth appropriate matters, and served the same, as regards the existing defendants. There was difficulty in securing jurisdiction of the Shovel Company by reason of non-residence. It was finally thought that such difficulty might by circumvented by attaching the credits of the Shovel Company in the hands of defendants. Up to this time many letters had passed between the attorneys and much negotiating been had, all of a non-adversary nature. The active attorney for plaintiffs was a member of the Wisconsin Legislature which was in session from the early part of January, 1913, until well into the middle of the following summer. That interfered with speedily accomplishing what such attorney supposed both sides desired to bring about as regards the second trial. On account of his situation, it was understood, as he regarded the matter from conversations with an attorney for defendants that he would be accommodated and that such attorney would co-operate in having the cases placed on the following January calendar for trial. To that end, as plaintiffs' attorney understood the matter, in July, 1913, and while such attorney was still in performance of his official duties, it was agreed that the causes should not be taken up for trial until the January term, 1914, he being told by defendants' attorney that formal notice of trial would not be necessary and promised that, at a seasonable time, attorneys for the respective parties would jointly act in having the cases set down for trial. Plaintiffs' attorney relied on this in his subsequent course. He made service of the amended summons...