Bishop v. McGillis

• Decision Date: 12 April 1892
• Citation: 51 N.W. 1075,82 Wis. 120
• Parties: BISHOP v. MCGILLIS, SHERIFF, ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 120

51 N.W. 1075

BISHOP

v.MCGILLIS, SHERIFF, ET AL.

Supreme Court of Wisconsin.

April 12, 1892.

Appeal from circuit court, Marinette county; SAMUEL D. HASTINGS, Judge.

Action by William F. Bishop against John J. McGillis, Henry W. King, John W. P. Lombard, and Jason K. Wright. Judgment for plaintiff. Defendants appeal. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

The action is trover. McGillis, “as sheriff, under attachments against the property of Armstrong, on October 25, 1884, seized, and thereafter sold on executions in the attachment suits, a stock of goods. This action was begun October 14, 1890, against the sheriff, King, one of the attachment plaintiffs, and Lombard and Wright, his sureties on a bond of indemnity to the sheriff. The plaintiff claims title to the goods, and alleges their conversion by the seizure in one count, and by the sale in another. The separate answers of McGillis, King, and the sureties, after a general denial, contain four defenses to each count. The second and third are justifications under three concurrent attachments and executions. The fourth and fifth are of the limitation of section 4223, Rev. St. The sixth and seventh plead a former judgment in the circuit court for Marinette county, in an action for the same cause, by plaintiff against McGillis and one Beals and others, plaintiffs in one of such concurrent attachments. These pleas aver that the complaint in this and in the former action alleges the same conversion, and that the answers in both actions interpose the same defenses; that King, on notice by the defendants in such former action, cooperated in the defense thereof; that on February 19, 1886, the parties thereto stipulated and agreed in writing that it should be discontinued without costs to either party; and that on the same day judgment of discontinuance on said stipulation was accordingly entered. The eighth and ninth defenses, in like manner, plead to each count a former judgment of the superior court of Cook county, Illinois, in an action for the same cause against M Gillis and King. The parties to this action, it is averred, on April 29, 1890, stipulated and agreed in writing that it should be dismissed without costs to either party, and that thereupon on said day judgment was duly rendered dismissing the action. By separate demurrer to each of the three answers plaintiff challenged the fourth, fifth, sixth, seventh, eighth, and ninth defenses thereof. The court below overruled the demurrer to McGillis' answer as to the fourth and fifth defenses, sustained it as to the remaining defenses demurred to, and sustained the demurrers to the answers of King and his sureties in toto; that is, it held the defense of limitation available to McGillis only, and the defenses of former judgment bad as to all defendants. The decision in favor of McGillis was affirmed on appeal, at the last term. Bishop v. McGillis, 50 N. W. Rep. 779. He now appeals from the order sustaining the demurrer to his other defenses, and King and his sureties, respectively, appeal from the orders against them.”Eastman & Mountain and Greene & Vroman, for appellants.

Fairchild & Fairchild, for respondent.

WINSLOW, J., ( after stating the facts.)

The appellants claim-- First, that the bar of limitations in favor of McGillis protects King and his sureties; second, that this action is barred by the former judgments of discontinuance and dismissal; third, that the commencement of said former actions was an election of remedy by the plaintiff, which precludes the prosecution of this action.

1. As to the plea of the special three-years statute of limitations, it has been held available as to the sheriff himself. Bishop v. McGillis, (Wis.) 50 N. W. Rep. 779. Is it available as to the other defendants, who authorized and indemnified the sheriff's act? It has been held in numerous cases that in actions upon contract, if the action be barred as against the principal, the bar will also be effective as to the sureties. The reason given for this rule is that the surety's liability is collateral merely, and that it is essential to the contract of the surety that there be a valid subsisting obligation on the part of the principal. It seems obvious that the present case does not fall within the rule nor within the reason of the rule. Though the indemnitors are sureties as between themselves and the sheriff, they are each and all principals as to the plaintiff. All who aid in the commission of a tort are principals as to the injured party, notwithstanding that the manual act may be that of...