Citizens State Bank v. Interstate Surety Co.

178 N.W. 935 | S.D. | 1920

GATES, J.

This is an appeal from a judgment for respondent and an order denying new trial. The cause was before us upon an appeal from an order overruling a demurrer to the complaint, which order was affirmed. Citizen’s State Bank v. Rosenberger, 40 S. D. 256, 167 N. W. 154. The facts necessary to an understanding of the case appear in that opinion. We there said:

“There is always in every contract of indemnity or surety-ship transaction an opportunity for the principal debtor and the person for whose benefit the indemnity contract is made to enter into a conspiracy to defraud the surety; but there is nothing in the transaction set out in the complaint that discloses any such fraudulent. conspiracy, or that the plaintiff bank acted otherwise then in good faith.”

Under the instructions given by the trial court upon that question the verdict of the jury favorable to respondent is decisive of that question.

In other respects the judgments entered against respondent in the several actions where in the several depositors were plaintiff, set forth in the complaint in this action, were decisive of the liability of appellant. Notice was given to appellant of the demands made by the depositors and of the commencement of the actions, and appellant was requested to pay those demands or to defend the actions. Appellant refused to do either. Under such circumstances the judgments in said actions became res judicata against appellant, except as to the matter of respondent’s good faith, above, adverted to. Goldberg v. Sisseton, L. & T. Co., 24 ,S. D. 49, 123 N. W. 226, 140 Am. St. Rep. 775; Mundt v. Messenger Pub Co., 42 S. D. 608, 176 N. W. 740.

Finding no error in the record prejudicial to appellant, the judgment and order appealed from are affirmed.

WHITING, J., took no part in this decision.