#### R. G. Uhlmann Fur Company, Respondent, vs. Gates and another, Executors, Appellants.

*December 9, 1913*

January *13, 1914*

*Abatement and revival: Death of party: Appealable orders: Abuse of discretion.*

1. An order reviving an action against the personal representatives o.f a deceased party is appealable.

2. Such an order, being in a matter within the sound discretion of the trial court, will not-be disturbed unless that discretion was abused.

3. In an action commenced in June, 1906, for the purchase price of women’s furs, defendant alleged that he never ordered or accepted them, that if they were furnished to his wife it was without his knowledge or consent, that they were not necessaries, and that he was not liable therefor. A few days later he brought suit for a divorce on the ground of desertion, and a divorce was granted in December, 1908. The action against him was noticed for trial in October, 1906; in June, 1907, it was by stipulation continued over the current term; and thereafter nothing was 'done by either party to bring it to trial. In August, 1911, defendant died suddenly. In April, 1913, after a motion to dismiss for want of prosecution had been made, plaintiff moved to revive the action. It being apparent that the -defense practically died with the defendant, it is *held*that it was an abuse of discretion,- under all the circumstances, to revive the action.

Appeal from orders of tbe circuit court for Milwaukee county: LawbeNCE W. Halsey, Circuit Judge.

*Reversed.-*

*386Tbis action was conunenced June 21, 1906. Tbe complaint contained two count's, one for goods sold and delivered to tbe defendant prior to December 1, 1905, of tbe value of $920, wbicb it is alleged tbe defendant .on that day agreed to pay, and tbe other for work and labor performed for tbe defendant between November, 1905, and March, 1906, of tbe value of $17.50. Tbe goods alleged to have been sold were furs, suitable for women’s wear. July 10, 1906, tbe defendant answered alleging, among other things, “that be never ordered or accepted tbe goods, wares, and merchandise mentioned in the complaint, and never authorized tbe ordering or acceptance of said goods on bis behalf by any person whatever, and further alleging that tbe plaintiff never performed tbe work, labor, and services referred to in the complaint, or any other work, labor, or services whatever, for this defendant, either at the times as specified in said complaint, or at any other time.” The answer also contained a general denial, and defendant claimed that these goods, if furnished to any one, were furnished to his wife without his knowledge or consent'. lie further claimed that his wife was fully supplied with all necessary articles of wearing apparel and .was not authorized to pledge bis credit, and when he saw these furs he understood from his wife that the same were purchased prior to her marriage to him, which occurred August' 26, 1905:

On June 25, 1906, divorce proceedings were instituted by the defendant against his wife on the ground of desertion, and tbe parties were divorced December 12, 1908. 1

Tbis case was regularly noticed, and placed upon tbe calendar, for trial at tbe October, 1906, term. On June 3, 1907, the parties signed a stipulation continuing tbe case for the then current term of court. Each claims that such stipulation was entered into at the request of the other. Since said stipulation was signed nothing further was done -.by either party to bring tbe case to trial. On August 25, 1911, the defendant, who had for many years past resided in Mil-*387waultee, Wisconsin, suddenly died after an illness of only a couple of days. Letters testamentary upon tbe estate of defendant were on September 29, 1911, .issued to Julius Jung-blut and Robert L. Gates, and on January 12, 1912, and January 29, 1912, tbe plaintiff filed its claims .involved in this action in tbe county court of Milwaukee county against tbe estate of defendant. On February 20, 1913, an order was entered, based on the affidavit of Robert-L. Gates, requiring the plaintiff to show cause March 1, 1913, why this-' action should not be dismissed for want of prosecution and for failure to revive tbe same after tbe death of tbe defendant. The plaintiff filed- an affidavit in opposition to tbe motion, and additional affidavits were permitted by the court to> be filed by tbe defendant. On July 15, 1913, tbe court entered an order denying the motion to dismiss tbe action and,, at tbe same time, granted an order based on all of tbe affidavits .and supplemental complaint and all tbe records, files, and proceedings in tbe action, reviving tbe case against tbe executors. Tbe executors appealed from both of these orders.

Eor tbe appellants there was a brief by *Flanders,*Bottum, *Fawseti & Botínm,*and oral argument by *F. L. McNamara.*

Eor the respondent there was a brief by *Chauncey W. Yockey,*attorney, and *Waldron, Corrigan, Connelly •& Di~ neen,*of counsel, and oral argument by *Frank Waldron*and *C.*i?. *Bineen.*

ViNJE, J.

That tbe order of revival is appealable was held in Voss *v. Stoll,*141 Wis. 267, 124 N. W. 89. That tbe application to revive was addressed to tbe sound discretion of tbe trial court;, and that this court will not interfere with its action thereon unless there has' been an abuse of discretion, is tbe settled law of this state. *Harris v. Welch,*148 Wis. 441, 447, 134 N. W. 1041.

Plaintiff claims it bad a right to refrain from prosecuting tbe action during tbe pendency of tbe divorce suit'. Oonced-*388ing, but not admitting, such right, it appears that the divorce was granted December 12, 1908. The defendant did not die till August 25, 1911, and the motion to revive whs not made until April 8, 1913, after a motion to dismiss for want of prosecution had been made. The delay from December 12, 1908,, until the death of the defendant remains wholly unexplained. It is apparent from the issues in the case that the defendant alone was in a position to make any defense to the claims made by the complaint, and that, practically, the defense died with him. Under such circumstances, and in view of the facts in the case, it was an abuse of discretion to revive the action. The decision in *Allen v. Frawley,*138 Wis. 295, 119 N. W. 565, rules this case.

*By the Court.*— Orders appealed from reversed, and cause remanded with directions to grant the motion to dismiss.