Dobie v. Fid. & Cas. Co. of New York

• Decision Date: 16 March 1897
• Citation: 70 N.W. 482,95 Wis. 540
• Parties: DOBIE v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

95 Wis. 540

70 N.W. 482

DOBIE

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Court of Wisconsin.

March 16, 1897.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Suit by David Dobie against the Fidelity & Casualty Company of New York to compel defendant to exonerate plaintiff from liability on an appeal bond. From a judgment for plaintiff on the pleadings, defendant appeals. Affirmed.

One Knute Anderson obtained a judgment against M. C. Burke and John Burke. The action was for personal injuries. The Fidelity & Casualty Company was an insurer of the Burkes against such claims, and was defending the action. It procured Dobie and Tennis to become sureties on the appeal, and gave them its own bond in the sum of $7,000 to indemnify them, conditioned to “answer for all damages, interest and costs, if any, that shall be adjudged” against the appellant, and “to save said Tennis and Dobie harmless from all costs and damages on account of their obligation as sureties.” Judgment went against the appellant on the appeal, and Tennis and Dobie became liable on their undertaking. No part of the judgment has been paid. The plaintiff brings this action to compel the defendant, the Fidelity & Casualty Company, to pay the judgment, and so exonerate the plaintiff from liability. The plaintiff had judgment upon the pleadings, according to the demand of his complaint, and the defendant appeals.Ross, Dwyer & Hanitch, for appellant.

Thorson & Crawford, for respondent.

NEWMAN, J. (after stating the facts).

The question presented is whether the complaint states a cause of action. The action is by a surety to compel his principal to pay the debt for which both are liable, for the exoneration of the surety. It is ultimately the defendant's liability. That party is the principal debtor, who is ultimately liable for the debt. The question is whether a surety can, in equity, compel his principal to exonerate him from liability, by extinguishing the obligation, without having first paid it himself. It seems to be well settled that a surety against whom a judgment has been rendered may, without making payment himself, proceed in equity against his principal to subject the estate of the latter to the payment of the debt, in exoneration of the surety. 2 Beach, Eq. Jur. § 903; 3 Pom. Eq. Jur. § 1417; Will. Eq. Jur. 110; United New Jersey Railroad & Canal Co. v. Long Dock Co., 38 N. J. Eq. 142; Beaver v. Beaver, 23 Pa. St. 167; Gibbs v. Mennard, 6 Paige,...