Opinion
No. 82.
Argued January 6, 1971. —
Decided February 2, 1971.
APPEAL from an order of the circuit court for Waukesha county: WILLIAM E. GRAMLING, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by L. William Connolly of Milwaukee.
For the respondent there was a brief and oral argument by Kenneth J. Ehlenbach of Milwaukee.
This appeal is presented pursuant to sec. (Rule) 251.28, Stats. The signed statement of facts reads as follows:
"On September 30, 1968, Jeanette M. Siedenburg commenced an action for the wrongful death of her husband in circuit court, Waukesha county, against Glenn M. Severson, by service of a summons and an affidavit of the plaintiff seeking discovery of Severson to enable her to frame pleadings. Demand for a complaint was made October 7, 1968. On January 13, 1969, motion to cause the summons to be filed was brought and it was filed. Plaintiff contended inability to draft complaint because defendant, Severson, and witnesses responded to majority of questions with the fifth amendment. The court ordered the plaintiff to serve and file a complaint within 20 days of May 5, 1969, or the action would be dismissed. On May 27, 1969, a complaint and amended summons was served. The plaintiff was designated in those papers as, `Jeanette M. Siedenburg, Special Administratrix of the Estate of Harold N. Siedenburg, deceased'; the defendants were Glenn M. Severson, et al. On July 14, 1969, defendant Severson, brought an order to show cause asking dismissal of the action as to him on the ground that a complaint had not been served and filed as ordered by the court. He contended that the plaintiff as personal representative was not the same plaintiff, Jeanette M. Siedenburg as an individual, that commenced the action originally. The court held that the plaintiff could choose the capacity in which she sued and that the original plaintiff was no longer a party to the action."
From the trial court's order (which is denominated "decision"), refusing to dismiss the complaint herein, defendant Severson appeals.
A single issue is presented on this appeal: Did the trial court abuse its discretion in denying appellant's motion to dismiss respondent's complaint wherein she changed her capacity as plaintiff from personal to special administratrix?
There was no abuse of discretion. The order must be affirmed. Respondent is clearly entitled to bring the action either in her own behalf or as personal representative of the decedent. The required affidavit supporting the noticed discovery needed in order for plaintiff-respondent to plead is not a pleading but is merely a statement of "the general nature and object of the action or proceeding." The entire purpose of this discovery procedure would be negated if a plaintiff were required to conform his complaint precisely to the affidavit. Here, too, the complaint alleged several alternative causes of action. There was no changing or adding "causes of action."
Sec. 895.04(1), (6), Stats.
Sec. 887.12(6), Stats.
Id.
Appellant has shown no prejudice by respondent's serving of the amended summons and the complaint. There certainly can be no claim of surprise, when it was the discovery examination which enabled the respondent to formulate her pleading.
Furthermore, a trial court, in its discretion, may permit the amendment of "any process, pleading or proceeding" and may do so "at any stage of any action." This provision is to be liberally construed.
Girtz v. Oman (1963), 21 Wis.2d 504, 509, 124 N.W.2d 586.
Sec. 269.44, Stats.
Wipfli v. Martin (1967), 34 Wis.2d 169, 148 N.W.2d 674.
The trial court's decision to allow such an amendment will not be disturbed by this court except for abuse of such discretion. There was clearly no abuse of discretion here. The trial court obviously concluded, as we do, that the complaint served was in compliance with its order of May 5, 1969.
Girtz v. Oman, supra, footnote 4.
By the Court. — Order affirmed.