Bishop v. McGillis
51 N.W. 1075
Wis.
1892
Check Treatment
WiNsnow, J.

The appellants claim, first, that the bar of limitations in favor of JMJcGillis protects King and his sureties ; second, that this action is barred by the former judgments of discontinuance and dismissal; third, that the commencement of said former actions was an election of remedy by the plaintiff, which precludes the prosecution of this action.

1. As to the plea of the special three-years statute of limitations, it has been held available as to the sheriff himself. Bishop v. McGillis, 80 Wis. 575. Is it available as to the other defendants, who authorized and indemnified the sheriff’s act? It has been held in numerous cases that *126in actions upon contract, if the action be barred as against the principal, the bar will also be effective as to the sureties. The reason given for this rule is that the surety’s liability is collateral merely, and that it is essential to the contract of the surety that there be a valid subsisting obligation on the part of the principal. It seems obvious that the present case does not fall within the rule nor within the reason of the rule. Though the indemnitors are sureties as between themselves and the sheriff, they are each and all principals as to the plaintiff. All who aid in the commission of a tort are principals as to the injured party, notwithstanding that the manual act may be that of one person alone'. In this case the defendants, if liable at all, each incurred a separate and independent liability to the plaintiff, and the plaintiff could sue either or any or all of them. The plaintiff might also agree for a consideration not to sue one, and could still maintain an action or actions against the others, unless he had executed a technical discharge under seal, or received some consideration as an accord and satisfaction of the whole injury. Ellis v. Esson, 50 Wis. 138. If one may be discharged by act of the party without discharging the remainder, how can the discharge of one by mere operation of law discharge the others? True, the statute of limitations in this state destroys the right as well as the remedy, but, because it has destroyed the right against the sheriff, has it destroyed the separate and independent rights which plaintiff has as against the remaining tort-feasors ? We think not. Had the other defendants been deputies who acted under the sheriff’s authority, the situation would have been different. There is authority for the proposition that a deputy in such a case may rely upon the statutory bar in favor of the sheriff (Cummings v. Brown, 43 N. Y. 514); but that case is not here for decision. It is sufficient to say that these defendants are in no such position, and we hold that the bar of *127the statute which protects the sheriff is not available to them.

2. As to the effect of a judgment of discontinuance or dismissal pursuant to a written stipulation or agreement. 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. There are authorities, notably in Kentucky, which hold that where the entry of judgment is, “ dismissed agreed ,” the legal deduction therefrom is that the controversy has been settled, and that the judgment will operate as a bar to another action. Bank of the Commonwealth v. Hopkins, 2 Dana, 395. In California, under the practice act of that state, this decision was approved, and it was held that where, by “ agreement of parties,” the cause was dismissed, each party paying his own costs, such dismissal amounted to a retraxit and was a bar to subsequent actions. These decisions are based on the ground that the necessary legal inference to be drawn from the language used is that the parties have agreed upon a settlement of the subject matter of the controversy. Even were the language which is so construed in those cases now before us, we think we should be slow to follow the conclusions reached by those courts. That construction has been very forcibly and tersely repudiated by the supreme court of the United States in Haldeman v. United States, 91 U. S. 584. But in the case before us we are not left to find out what the parties agreed to by construction of indefinite or general language. The plea states that they agreed to one certain thing. They agreed that the suits should be dismissed. How can a court say that an agreement of settlement of the controversy must be inferred when the record states that they agreed to one definite thing, namely, to a dismissal? There is no room for inference or construction when the language is definite and unmistakable. The reasoning of Mr. Justice Davis in *128Haldeman v. United States, 91 U. S. 584, on this point, is very satisfactory to our minds, and to the same effect is Wakeley v. Delaplaine, 15 Wis. 554, where Mr. Justice Cole says of such a stipulation: “ It simply places the parties in the same position they occupied before the litigation commenced.” Such we hold to be the effect of the judgments of dismissal pleaded in this action.

3. Has the commencement of former actions barred the prosecution .of this action? If it has, it must be upon the doctrine of election of remedies. The general rule is that where a party has two remedies which are inconsistent with each other he is confined to the remedy which he first adopts. Such is not the case here. The plaintiff has separate and concurrent remedies. He may sue one, or part, or all, or he may sue one separately and others jointly, but he can have but one satisfaction. We have seen that he has lost no rights by suing a part and discontinuing his action. He can have but one judgment against the same person, but no good reason is perceived why, after having sued a part and discontinued his action, he may not join others with one or more of the defendants in the previous action. Cooley, Torts, 133-136.

These views necessitate 'affirmance.

By the Court.— Those parts of the orders which are appealed from are affirmed.