38 Wis. 373 | Wis. | 1875
This is an action to compel contribution bj one surety to another for money paid on a bond given by a guardian on the sale of real estate belonging to his ward. The bond was joint and several, and was conditioned that if tbe guardian “ do and shall justly and truly account for all the proceeds of the sale of said real estate and dispose of the same according to law, and perform all orders and decrees of the county court by him to be performed in the premises, then the obligation to be void.”
On the trial, the plaintiff offered in evidence a certified copy of an order on accounting' before the county court, which showed that the guardian had been cited to appear before that court and render an account of his guardianship; that the guardian and sureties did appear, and, after hearing the allegations and proofs of the parties, the court adjudged that there was due from the guardian to tbe ward the sum of $978.30, and ordered the amount to be paid within sixty days after the service of a copy of the order upon the guardian and sureties. The money not being paid, an action was subsequently commenced on the bond against the guardian and this plaintiff, in which judgment was rendered against them for $1,009.48 damages, and $57.24 costs. The plaintiff paid this judgment, and has sued and recovered a judgment against the cosurety for one-half of the amount thereof; also the sum of $12.50, which was one-half the amount paid the attorney who appeared for the sureties in the county court on the accounting. The principal question in the case arises upon the rulings of the court in excluding certain testimony offered on the part of the defendant. The defendant offered to prove that tbe guardian sold the land to the plaintiff at the sale for $1,300, receiving in payment a span of horses at $500. twenty acres of land at
But there is, perhaps, a more satisfactory ground for excluding the evidence offered, which is, that the sureties were concluded by the order of the county court as to the amount due. The order shows that the sureties appeared by counsel before that court on the hearing and final accounting of the guardian. But even if they had not appeared at the accounting, we are still inclined to hold, upon the authorities, considering the nature of their contract and the relation they occupied to the guardian, that their responsibility would be fixed in a proceeding to which they were not parties, and where they had no opportunity to contest the amount due. The law in relation to the effect of a judgment against a principal, for the purpose of charging the surety, has frequently been considered by the courts; and the decisions are not always in entire harmony on the subject. Distinctions have been made in the application of the rule of law, which are not very marked and obvious. The general rule of course is, that a judgment is conclusive onl}'- as against parties and privies; but to this there are exceptions. And it is conceded that whenever the surety has contracted in reference to the conduct of one of the parties'in some suit or proceeding in the courts, he is concluded by the judgment. Pratt v. Donovan, 10 Wis., 378; Booth v. Ableman, 20 id., 602; Smith v. Lockwood, 34 id., 72. And it has also been decided that the sureties upon the bond of an administrator are bound by a decree against the administrator finding assets in his hands and nonpayment of them over, to the same extent to which the administrator himself is bound. Stovall v. Banks, 10 Wall., 583; Heard v. Lodge, 20 Pick., 53; Garber v. Commonwealth, 7 Barr, 265. The sureties are not to be concluded by a,judgment suffered collusively by the administrator (Boyd v. Caldwell, 4
It was claimed that the recitals in the order of the county court were not evidence that the guardian had been cited to render his account, and that this fact should have been shown dehors the order. This position is untenable in view of secs. 2, 3, ch. 117, R. S.
It is further insisted that the plaintiff could not recover any' portion of the costs. The bill of exceptions does not purport to contain all the evidence, and we must presume that the testimony showed that the plaintiff was entitled to recover the $12.50 which was paid the attorney for services rendered in the county court on the accounting. But we do not understand that the right to contribution extended to the costs incurred by the plaintiff, or paid by him, in the action brought in the circuit court. It does not appear that the defendant authorized the payment of those costs, or agreed in any way to be liable for his share of them, and there is no special count in the complaint which would warrant any evidence to show that he was responsible'for them. Under these circumstances the judgment of the circuit court must be reversed, and the cause remanded with an order to that court to allow the plaintiff to remit from the judgment the costs of the action on the bond, judgment to be entered for him in case he remits; and to grant a new trial if he declines to remit.
By the Court. —It is so ordered.