149 Minn. 187 | Minn. | 1921
The defendant National Surety Company was' surety for Frank Steblaj, an Eveleth saloonkeeper, on the bond required by statute, G. S. 1913, §§ 3116, 3117. On October 13, 1917, a man named John Shalka was in the Steblaj saloon. He was intoxicated, but nevertheless Steblaj continued to furnish him with liquor. There was evidence that he threatened to attack a man in the saloon and only desisted at the command of Steblaj, and that thereafter he was supplied with more liquor. At this juncture plaintiff’s father, James P. Miles, entered the saloon and in a
The assignments of error are: (1) That, by failing to file in the probate court a claim against the Steblaj estate, plaintiff lost her right to hold the defendant as surety on the bond; (2) that the evidence conclusively showed that plaintiff supported herself without aid from her father; (3) that the father was lulled in a drunken brawl which he
In Lynch v. Brennan, 131 Minn. 136, 154 N. W. 795, the history of the legislation on this subject is given, and the conclusion reached that both the principal and the surety on the bond áre liable for any damage proximately caused by any act which is a violation of any of the conditions of the bond. In Posch v. Lion B. & S. Co. 137 Minn. 169, 163 N. W. 131, the court remarked: “Of course the surety is not liable unless the principal is. If the liability is joint and several, it is plain that the surety may be sued alone. This is probably the nature of the liability.”
In Koski v. Pakkala, 121 Minn. 450, 141 N. W. 793, 47 L.R.A. (N.S.) 183, it was held that in case of the death of the principal, one having a cause of action under section 3200, G. S. 1913, might prosecute it against the representative of the estate of the deceased. Under these decisions and the provisions of the statute quoted, plaintiff’s failure to file a claim for damages against Stoblaj’s estate did not release the surety on the bond. The doctrine of Siebert v. Quesnel, 65 Minn. 107, 67 N. W. 803, if it is still to be adhered to in spite of what was said about it in Board of Co. Commrs. of St. Louis County v. Security Bank of Duluth, 75 Minn. 114, 77 N. W. 815, has no application to the case at bar. The statute imposes direct liability upon the surety. We see no reason why the intimation in the Posch case should not be accepted as a correct statement of the law, and accordingly 'hold that a surety on
Judgment affirmed.