Johnson v. County of Crawford

SUNDBY, J.

(concurring). I reluctantly conclude that § 893.13(2), STATS., applies only to appeals. Section 893.35, Stats., 1977, which applied only to appeals, was repealed and re-created by Laws of 1979, ch. 323, §28 as §893.13(2). There is no suggestion that the legislature intended to create a general tolling stat*385ute.1 This act revised and consolidated claim procedures. It appears that the effect of dismissing an action upon the tolling of a statute of limitations is governed by the common law.

The Wisconsin cases hold that if an action is dismissed without prejudice, the parties are placed in the same position they occupied before the litigation commenced, especially if the action is dismissed upon stipulation of the parties. Wakeley v. Delaplaine, 15 Wis. 614, 618 (1862). "If the situation of the parties, or their relations to the property, had been changed by the litigation, they were to be reinstated in the rights they occupied and enjoyed prior to the commencement of the action." Id.

In Bishop v. McGillis, 82 Wis. 120, 51 N.W. 1075 (1892), defendants claimed that a judgment of dismissal, entered upon a stipulation to dismiss, barred the action for three reasons. One of the reasons was that the action was barred by the statute of limitations. The court rejected this defense. The court discussed the effect of the stipulated judgment of discontinuance or dismissal. Id. at 127, 51 N.W. at 1076. The court said:

We think the profession would be surprised to learn that a judgment of dismissal, entered upon a mere stipulation to dismiss, is even prima facie a bar to all future actions for the same cause. Certainly, if such be the law, it ought to be speedily announced.

Id.

*386Relying on Wakeley and Haldeman v. United States, 91 U.S. 584 (1876), the court held that the effect of a judgment of dismissal was simply to place the parties in the same position they occupied before the litigation commenced. Bishop, 82 Wis. at 127-28, 51 N.W. at 1076.

In Haldeman, the Court said that, "the general entry of the dismissal of a suit by agreement is no evidence of an intention to abandon the claim on which it is founded, but rather of a purpose to preserve the right to institute a new suit if it becomes necessary." 91 U.S. at 586. This makes eminent good sense.

In our case, the statute of limitations had not run on Johnson's claim. She commenced an action which preserved her claim against the running of the statute of limitations. After dismissal without prejudice, Johnson could, and did, begin a new action to preserve her claim against the running of the statute of limitations.

In McKissick v. Schroeder, 70 Wis. 2d 825, 235 N.W.2d 686 (1975), the court rejected defendant's argument that an order which dismissed all prior complaints and provided for service of the fifth complaint effectively nullified all prior complaints, and could not be said to have tolled the statute of limitations. The court said:

A subsequent dismissal of a complaint for certain defects or by stipulation of the parties does not have the effect of eliminating the tolling of the statute of limitations, which stops running when that summons and complaint are served, even if the complaint is afterwards dismissed.

Id. at 831, 235 N.W.2d at 689 (emphasis added).

Of course, the plaintiff may not commence a new cause of action which is barred by the statute of limita*387tions. The new complaint must merely re-state in a different form the cause of action stated in the original complaint. Fredrickson v. Rabat, 264 Wis. 545, 547, 59 N.W.2d 484, 485 (1953) (quoting 34 Am. Jur. Limitation of Actions § 260).

Another way of looking at this is to conclude that Crawford County is as much bound by the stipulation as is Johnson. Therefore, Crawford County waived its right to insist upon the statute of limitations. I do not believe Crawford County considered that when it induced Johnson to dismiss her claim "without prejudice," Johnson should suffer the ultimate prejudice — the destruction of her claim.

An alternative approach is suggested in Colin v. Department of Transportation, 423 So. 2d 1020 (Fla. Dist. Ct. App. 1982), which treated a new action brought after an action was dismissed without prejudice as an amended complaint which related back. The New Mexico Supreme Court approved this approach in Bracken v. Yates Petroleum Corp., 760 P.2d 155, 158 (N.M. 1988).

In some jurisdictions a statute specifically tolls the statute of limitation when an action is dismissed without prejudice.2 I do not believe that § 893.13(2), STATS., is such a statute. This omission should be corrected by the legislature.

In fact, the Judicial Council Committee's Note, 1979, states that § 893.35, STATS., is repealed and this section is created to clarify the ending of the tolled period of a statute of limitations in the various situations which can arise "when an appeal is taken." (Emphasis added.)

See, e.g., Stewart v. Michigan Bell Tel. Co., 197 N.W.2d 465 (Mich. Ct. App. 1972) (if action dismissed other than on merits, statute tolled while action pending); Lewis v. Connor, 487 N.E.2d 285 (Ohio 1985) (dismissal without prejudice does not destroy cause of action).