Stocking v. Hanson

• Decision Date: 20 April 1876
• Citation: 22 Minn. 542
• Parties: DARWIN STOCKING & others, Executors, <I>vs.</I> RANDALL W. HANSON.
• Court: Minnesota Supreme Court

22 Minn. 542

DARWIN STOCKING & others, Executors, vs. RANDALL W. HANSON.

Supreme Court of Minnesota.

April 20, 1876.

Appeal by defendant from an order of the district court for Hennepin county, Vanderburgh, J., presiding, sustaining a demurrer to his answer to a supplemental complaint.

D. A. Secombe, for appellant.

George Bradley, for respondents.

BERRY, J.

Under the provisions of Gen. St. ch. 66, § 36, the plaintiffs filed a supplemental complaint, in which they allege that a certain action for the recovery of real property, pending in the district court for Hennepin county, between De Lafayette Stocking, plaintiff, and Wm. Hanson and Randall W. Hanson, defendants, was duly tried and submitted to the judge of said court on July 3, 1871; that on February 19, 1873, the judge made and filed his decision therein in favor of defendants and against the plaintiff therein; that on February 24, 1873, judgment was entered in accordance with such decision, adjudging Randall W. Hanson to be the owner and entitled to the possession of the real property in controversy; that at the time when the action was submitted the plaintiff therein was living, but that on January 6, 1872, he died testate; that his will was admitted to probate at the place where he resided in his lifetime and at his decease, to wit, in the city of Binghamton, in the state of New York, on February 16, 1872, and in said Hennepin county on November 25, 1872; that the plaintiffs in the present proceeding are devisees and executors named and appointed in the will aforesaid, two of them having been appointed executors in the will, and having accepted such appointment and duly qualified, and all of them (except one executor) having been made devisees by the will; and that said executors and devisees are the only persons named as such in the will. The supplemental complaint further alleges that plaintiffs have received no notice of the judgment before mentioned. The relief which the plaintiffs ask is that the judgment be opened; that they be substituted as plaintiffs in the original action in place of De Lafayette Stocking, and have leave and time to make a case therein for appeal to the supreme court, and such other or further relief as shall seem just and equitable.

For answer to the supplemental complaint, Randall W. Hanson alleges that on March 1, 1873, written notice of the judgment before mentioned was served upon George Bradley, Esq., who was one of the attorneys for De Lafayette Stocking in the original action; and, further, that on March 13, 1873, the executors mentioned returned an inventory of the estate of De Lafayette Stocking into the probate court of Hennepin county; that on April 9, 1873, the same was approved by said probate court, which, on November 24, 1873, made a final decree of distribution of said estate; and that the real estate in controversy in the action before mentioned was not included in the inventory, nor claimed in any way to belong to said estate.

To this answer plaintiffs demurred, and upon a hearing the district court granted the relief asked, to the extent of substituting the plaintiffs here as plaintiffs in the original action, in place of De Lafayette Stocking, leaving them "to take such proceedings therein, as his successors in interest as by law they may have a right to do." From this order Randall W. Hanson appeals to this court.

Defendant insists that the plaintiffs' application should have been denied on account of the delay in making it. The statute under which the present proceeding was taken provides that, in case of the death of a party, the court, on motion, at any time within one year thereafter, "or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest." Gen. St. ch. 66, § 36. We think the fair construction of the statute is that, when the application for substitution is made within one year, it is allowed to be made upon a motion, (to be heard, of course, on affidavits,) upon the theory that when the lapse of time is so short the mode of procedure should be simple, it being almost a matter of course to permit the substitution; not that there may not be cases in which it may be proper to refuse it, but that the statute regards an application made within a year as prima facie in time. But after the lapse of a year the statute requires a more formal application by a supplemental complaint. The idea evidently is that, after so long a delay, a substitution should not be allowed without an opportunity for the opposing party to raise a regular issue by answer or demurrer — an issue to be tried as other formal issues of fact or law are tried by the court. The theory of the statute evidently is that in such cases the application is prima facie too late, and that it is for ...