Fleming v. Ellison

¶1(dissenting). I take no issue with the proposition that if a plaintiff, who has in good faith brought an action in equity, fails for some reason to establish his equitable right, but shows himself entitled to legal relief, the court will ordinarily retain the action and grant the proper legal relief. I do not consider this principle, however, to be the controlling proposition in this case. It is undisputed here that the plaintiffs knew of Carmichael’s conveyance of the land in question at about the time it took place — i. e., in *44August, 1900; that Carmichael died in October, 1902; and that the plaintiffs, knowing the facts rendering specific performance impossible, and hence that money damages would be their sole relief, allowed the time fixed by the statute for filing claims against the deceased to pass. They then came into court and asked a court of equity to allow the action to be revived, not to obtain specific performance of the contract,'-but for the purpose only of obtaining a money judgment, which they say they elect now to take. Now, while this may not be strictly the substitution of a cause of action at law for one in equity (although it certainly comes very near it), it must be conceded that this motion presented to the trial court a question of discretion. That court evidently concluded that in view of the fact that the plaintiffs, with knowledge of all the facts, had allowed the full period for the presentation of claims against the estate to pass, it would not allow the action in equity to be revived simply for the sake of recovering a claim for money which should properly have been presented to the probate court. There was here a question of discretion, and the order should not be reversed except for abuse of discretion, and it seems to me this has not been shown.