76 Wis. 335 | Wis. | 1890
The charter of the defendant city, at the time this action was originally commenced, provided in
Ch. 471, Laws of 1889, provides in effect that “whenever any injury has happened or shall happen to any person or property in any city ... by reason of any defect in any . . . street, . . . and such defect . . . shall be caused by, arise from, or be produced by the wrong, default, or negligence of any person, . . . such person . . . so guilty of such wrong, default, or negligence shall be primarily liable for all damages arising from such injury; but such city . . . may be sued in the same action with the one so primarily liable, and be complained against as if primarily liable.” But, if it is made to appear upon the trial of such action, by the verdict or finding, that such city is liable, but not primarily liable, then the court shall enter judgment against all the defendants found liable for the amount; “ but the court shall stay execution against such city . • . . until execution against those found to be primarily liable shall have been returned unsatisfied in whole or in part,” and then the party injured may proceed against the city for any unpaid balance. The act also provides, in effect, that if any action be brought against any person without making such city a party, “ the plaintiff may amend in like manner, by making such city . . . a party.”
It is strenuously claimed that this chapter does not apply
But there is another reason why this demurrer should not be sustained. Ch. 471, Laws of 1889, has changed the remedy so that, in proceeding against the city, it can no longer be regarded as a mere guarantor of the collectibility of any damages that may be recovered against the principal wrong-doer. By that act the injured party is no longer obliged to exhaust his remedy against the principal wrongdoer before proceeding against the city; but he may proceed against such wrong-doer and the city together, and recover judgment against both at the same time. The only difference remaining between such wrong-doer and the city is that execution on such judgment against the city must be stayed until an execution against such wrong-doer has been returned unsatisfied in whole or in part.
By the Court.— The order of the circuit court is affirmed.