The question for decision is whether one of several defendants in an action for wrongful death arising out of a joint tort may have still another joint tort-feasor brought in and made a party defendant for the purpose of enforcing contribution, when the plaintiff’s right of action against such other tort-feasor, originally subsisting, has been lost by the lapse of time. C. S. 160;
Curlee v. Power Co.,
The pertinent meaning of C. S., 618 is that in an action arising out of a joint tort wherein judgment may be rendered against two or more persons, who are jointly and severally liable, and not all of the joint tort-feasors have been made parties, those who are sued may at any time before judgment, upon motion, have the other joint tort-feasors brought in and made parties defendant in order to determine and
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enforce contribution.
Freeman v. Thompson,
It is true common liability to suit must Lave existed as a condition precedent to contribution, but it is not essential that it should continue to subsist, or be kept alive, against all of the joint tort-feasors.
DeBrue v. Frank,
213 Vis., 280,
In cases where the negligent acts of two or more persons concur in producing a single injury, with or without concert among them, the general rule is that they may be treated as joint tort-feasors and sued separately or together at the election of the injured party or his representative.
Charnock v. Taylor, ante,
360;
Hipp v. Farrell,
At common law no right of action for contribution existed between or among joint tort-feasors who were
in pari delicto. Baulf v. Light Co.,
The right to “enforce contribution” in an action like the present comes from this amendment. It is the right of one joint tort-feasor, against whom judgment has been obtained in an action arising out of a joint tort, to recover of the other joint tort-feasors their proportionate part of such judgment. Hoft v. Mohn, supra.
The right accrues when judgment is obtained in an action arising out of a joint tort. From this it follows that a contingent or inchoate right to enforce contribution arises to each defendant tort-feasor at the time of the institution of the action to recover on the joint tort. As
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long then as the plaintiff’s right to recover in such suit remains undetermined, the contingent or inchoate right of each defendant tort-feasor to enforce contribution continues, and, on rendition of judgment in favor of the plaintiff, this right matures into a cause of action.
The purpose in allowing all joint tort-feasors to be made parties defendant at any time before judgment in the suit to recover on the joint tort is to provide for settlement of the whole controversy in a single action.
Gaffney v. Casualty Co., supra;
The fact that a municipality of one county is to be made a party defendant in an action pending in another county has not been overlooked. C. S., 464;
Cecil v. High Point,
Reversed.