Schnur v. Hickcox

45 Wis. 200 | Wis. | 1878

Lyoit, J.

Atender made before suit, to be available, should be pleaded, and the money tendered paid into court for the benefit of the plaintiff. When this is regularly done, if the plaintiff fails to prove a cause of action for a greater amount than was tendered, judgment goes for the defendant for his costs, but the money paid into court belongs to the plaintiff. It also belongs to him if the defendant fails to prove a valid or sufficient tender; and in such case the plaintiff is entitled to judgment at least for the sum paid into court, and for costs; but execution goes only for the balance of the judgment after deducting such sum.

The principle upon which these rules are founded is, that the tender (even though insufficient) and the payment into court, for the plaintiff, of the money tendered, is a conclusive admission that the amount so paid in is due the plaintiff; and hence, that the money belongs absolutely to him, whatever may be the fate of the action: Becker v. Boon, 61 N. Y., 317; Logue v. Gillick, 1 E. D. Smith, 398; Read v. Ins. Co., 3 Sandf. S. C., 54; Slack v. Brown, 13 Wend., 390.

Applying these rules to the present case, the result is, that the $150 paid into court belonged absolutely to Mrs. Schnur, for whose benefit it was paid, and still belongs to her, unless she has assigned it to some other person or has done some act equivalent thereto. It does not appear that she has made any transfer of the money. Although that action was settled, we are not informed of the terms of the settlement. It may well be that she retained her right to the money in the settlement, and is still entitled to it. The question whether it remains her money or whether she has parted with her title to it, ought to be settled by the proper court before an action is brought on the bond of the clerk for neglecting or refusing to pay over the money to any person other than the party for whom it was paid into court.

' In contemplation of law, the money is held by the court for Mrs. Schnur; and it seems very clear, on principle and authority, that no other person should be allowed to recover it until the court in whose custody it is, shall, upon proper proceedings and proofs, so order.

"We think the plaintiff should apply to that court, on notice to all parties interested, for an order requiring its late clerk, Mr. Hickcox, to pay over the money to him; and if he shows himself entitled thereto, the court will make such order. Until that is done, we do not think the plaintiff can maintain an action on the official bond of Mr. Hickcox for the recovery of the money. We also think that the fact that Mr. Hickcox has gone out of office does not affect the jurisdiction of the court in the premises. Because the record fails to show any such proceedings, a judgment of nonsuit could not have been disturbed. Hence the plaintiff' is not in a position to attack the order for a new trial, which is, or may be, more favorable to him than a nonsuit.

It may be observed that it was the duty of Mr. Hieheox, on. retiring from the office of clerk, to pay over this money to his successor. Iiis failure to do so is a breach of one of the conditions of his official bond, for which an action on such bond may be maintained by the proper party. Rut this is not such an action.

By the Court. — The order of tlie court below granting a new trial is affirmed.

Rxan, C. J., took no part.