Howard v. Lunaburg

The objection to the survival of the action was that since the sole defendant was dead it appeared from the face of the complaint that it stated no cause of action against the executrix. The objection was equivalent to a general demurrer, and the order overruling it was therefpre appealable.

That a cause of action existed against the original defendant is conceded. Sec. 246.07, Stats. The sole question is, Does the action survive? At common law tort actions did not survive. This was so although property rights were incidentally affected. 1 Ruling Case Law, 31. Such rule was founded on the…