#### Geo. Walter Brewing Company, Appellant, vs. Henseleit and others, Respondents.

*September 12*—

October *3, 1911.*

*Action:*Dismissal, *When a bar to subsequent action.*

A seasonable voluntary dismissal by plaintiff of Ms action, or a dismissal pursuant to a stipulation, is no bar to tbe maintenance of a subsequent action for tbe same cause and between tbe same parties; but sucb a bar results where, pursuant to sec. 1811a, Stats. (1898), an action is dismissed as to a necessary party because not brought to trial within five years after-tbe commencement thereof.

*667Appeal from a judgment of tbe municipal court of Outa-gamie county: Thomas H. EyaN, Judge.

*Affirmed.*

This is a creditors’ action to set aside tbe conveyance of' real estate and sale of personal property by *John Ilenseleii*to bis son, *August Henseleit,-Ax*1900, as fraudulent against creditors. Tbe present action is by tbe *Geo. Walter Brewing Company,*tbe assignee of Christian Walter as trustee of tbe estate of Geo. Walter, deceased. Tbe defendants *Algrim*are made parties to tbe action solely because in 1907 they purchased a portion of tbe real estate conveyed. June 15, 1903, a creditors’ action was begun by Christian Walter, as trustee, against *J ohn*and *August Henseleit,*involving tbe same subject matter. Issue was joined therein. On December 2,. 1908, on motion of *August Henseleit,*the action was dismissed as to him by the court pursuant to see. 2811a, Stats. (1898), because it bad not been brought to trial within five years after its commencement. Sec. 2811a reads as follows i

“Tbe circuit courts and tbe superior courts may dismiss,, upon their own or upon the motion of either party and with or without notice, any and all actions or proceedings pending therein in which issue shall have been joined and which shall not be brought to trial within five years from and after the commencement of such action or proceeding.”

No appeal was taken from the judgment of dismissal. The pendency and dismissal of such action was, among other: defenses, pleaded in bar of the present action. ' The trial court held that the dismissal of the former action was no bar to the maintenance of the present .one, but found for the defendants on the merits. Erom a judgment entered accorc^-ingly, plaintiff appealed.

*Humphrey Pierce,*for the appellant.

Eor the respondents the cause was submitted on the brief of *Francis J: Rooney*and *A. M. Spencer.*

ViNJE, J.

Defendants claim that the dismissal of the former suit begun by plaintiff’s assignor against *John*and-*668
      *August Henseleit,*and involving tbe same cause of action, is a complete bar to tbe prosecution of tbe present one; tbat sucb judgment of dismissal was a final determination as to any rights tbe plaintiff may have bad against tbe defendant *August Henseleit,*and, since be is a necessary party to tbe present action, it cannot be maintained. Plaintiff contends tbat sucb dismissal is not a bar, because there was no bearing bad on tbe merits, but only a dismissal upon an *ex parte*motion, and tbat sucb dismissal leaves all matters unsettled and places tbe parties in tbe same position they occupied before tbe litigation began, and tbe cases of *Bishop v. McGillis,*82 Wis. 120, 51 N. W. 1075; *Fischbeck v. Mielenz,*119 Wis. 27, 96 N. W. 426; *Spear v. Door Co.*65 Wis. 298, 27 N. W. 60; and *Wakeley v. Delaplaine,*15 Wis. 554, are cited to sustain tbe contention.

In *Bishop v. McGillis,*82 Wis. 120, 51 N. W. 1075, there was a judgment of dismissal entered upon a stipulation of the parties. In *Fischbeck v. Mielenz,*119 Wis. 27, 96 N. W. 426, it was held tbat tbe withdrawal of a claim presented in assignment proceedings and tbe entry of an order or judgment to tbe effect tbat tbe claim was withdrawn and all proceedings thereon dismissed was in tbe nature of a voluntary nonsuit, and tbat sucb withdrawal did not prevent the claimant from afterwards maintaining an action upon sucb claim. In *Spear v. Door Co.*65 Wis. 298, 27 N. W. 60, plaintiff began an action to set aside certain assessments upon real estate. Afterwards tbe property was reassessed. Tbe first action was dismissed and a subsequent action was brought to set aside tbe reassessment. It was held tbat tbe former action was no bar to tbe bringing of another action, partly because it did not appear tbat tbe former action was dismissed by reason of any fault on tbe part of tbe plaintiff, and partly because tbe second action was not upon tbe same cause as tbe first. In *Wakeley v. Delaplaine,*15 Wis. 554, there was a judgment of dismissal pursuant to a stipulation of tbe par*669ties. In *State ex rel. Kane v.*Larrabee, 3 Pin. 166, there was a dismissal of a bill in equity on the ground that no one appeared on behalf of complainant when the case came up for hearing in its order on the calendar, and it was held that such dismissal was not a bar to another suit for the same cause.

It will thus be seen that all the cases cited by plaintiff relate either to the voluntary dismissal of an action or withdrawal of a claim, or to a dismissal pursuant to a stipulation, or to a different cause of action than the one dismissed, or to a mere dismissal for want of prosecution when the case was called. In none of them was sec. 2811a, Stats. (1898), involved. It is undoubtedly the law of this state that a seasonable voluntary dismissal by plaintiff of his cause of action, or a dismissal pursuant to a stipulation, is no bar to the bringing of a subsequent action for the same cause and between the same parties. *Bishop v. McGillis,*82 Wis. 120, 51 N. W. 1015. But it does not follow from such a rule that a dismissal pursuant to sec. 2811a has the same effect. Such a dismissal is *in invitum*and the restdt of at least constructive laches on the part of the plaintiff. Statutes of limitation are of ancient origin. It was early ascertained that injustice and not justice was often meted out in the prosecution of stale claims, and later it was discovered that, though a suit might be seasonably instituted, yet, if it was not seasonably brought to trial, like injustice might result. Hence the enactment in 1891 of sec. 2811a. Speaking.of its purpose this court has said: “It indicates the legislative policy that actions should not be permitted to slumber indefinitely, but that a reasonable time should be allowed within which to prosecute them, and provides a limitation.” *Fleming v.*Ellison, 124 Wis. 36, 41, 102 N. W. 398. That it was intended as a statute of limitation upon the time within which a suit might be prosecuted is evident both from its language and the rules of law applicable to nonsuits and dismissals existing at the time *670it was passed. If it be not. so construed it is meaningless, for it would then not affect tire status of dismissals in the least. Before it was passed a plaintiff could suffer a nonsuit, •or dismiss at any time and begin over again. If be can do so after the court has dismissed under the statute, then nothing has been accomplished by its enactment; That the bar has not so construed the effect of a dismissal under it is evident from the fact that appeals have been taken to this court from judgments of dismissal to test the right of plaintiff to further prosecute. See *Rice v. Ashland Co.*108 Wis. 189, 84 N. W. 189; *Hine v. Grant,*119 Wis. 332, 96 N. W. 796; and *Smith v. Carter,*141 Wis. 181, 122 N. W. 1035. If a plaintiff could begin over again after a dismissal, such an •appeal would be useless. It is now as much the policy of the law of this state that a suit shall be seasonably prosecuted as that it shall be seasonably begun. *Smith v. Carter, supra.*And if the legislative policy as expressed in the statute in •question is carried out by trial courts, much will be done to lessen the law’s delay. Diligence and not sloth will then wait upon justice, and we shall seldom hear the complaint that a belated victory is more disastrous than an early defeat. Gladstone has truly said: “When the case is proved, and the hour is come, justice delayed is justice denied.” The statute is ■one of rest. It affords ample opportunity for the trial of ■every cause under the most adverse circumstances, and no litigant is entitled to demand more. It was enacted in the furtherance of justice, and its enforcement will serve the best interests of all litigants who have faith in the merits of their •claims and who desire that justice shall be done seasonably.

It follows that when the suit between plaintiff’s assignor ■and *John*and *August Henseleit*was dismissed by the court as to *August Henseleit*pursuant to the statute, no subsequent •suit involving the same subject matter could be maintained by plaintiff or his privy in interest against *August Henseleit.*
      *671And if tbe present suit cannot be maintained against *August Henseleit*it cannot be maintained against tbe other defendants, for *August*is a necessary party to tbe prosecution thereof.

Tbe result arrived at renders it unnecessary to discuss tbe merits of tbe case. Tbe judgment of dismissal entered by the trial court must be affirmed, but not upon tbe grounds ■therein stated.

*By the Gourt.*— Judgment affirmed.