Muirhead v. Bruns
| Decision Date | 05 February 1929 |
| Citation | 198 Wis. 104,223 N.W. 565 |
| Parties | MUIRHEAD v. BRUNS ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Kenosha County; Hon. E. B. Belden, Judge.
Action by Thomas Muirhead, assignee of Frank Willems, Sheriff of Kenosha County, against John Bruns and another. Judgment for plaintiff, and defendants appeal. Reversed, and complaint dismissed without prejudice.--[By Editorial Staff.]
The complaint, among other things, alleges that on December 24, 1925, pursuant to the mandate of this court, a tort judgment was duly entered in the circuit court for Kenosha county; for the sum of $2,288.88 damages and costs, in favor of the above-named plaintiff and against the above-named defendant John Bruns; that on the 27th day of April, 1926, an execution against the property of the above-named defendant John Bruns was duly issued out of the circuit court for Kenosha county, and delivered to the sheriff of said county, and returned by said sheriff on the 6th day of May, 1926, wholly unsatisfied; that on the 6th day of May, 1926, an execution against the body of the defendant John Bruns was issued out of the circuit court for said county, and delivered to said sheriff; that pursuant thereto, such sheriff arrested such defendant John Bruns, and conveyed him to the county jail of Kenosha county; that on the 7th day of May, 1926, the above-named defendants duly executed, signed, and delivered to the sheriff of said county the following bond and recognizance:
“Know all men by these presents, that we John Bruns and John P. Bruns, are held and firmly bound unto Frank Willems, sheriff of the county of Kenosha, Wisconsin, in the sum of Five Thousand ($5000.00) Dollars lawful money of the United States, to be paid to the said Frank Willems or to his certain attorney, executors, administrators or assigns; for which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors, administrators, jointly and severally firmly by these presents.
Sealed with our seals, dated the 7th day of May, A. D. 1926.
+----------------------+
¦John M. Bruns ¦[Seal.]¦
+--------------+-------¦
¦John P. Bruns ¦[Seal.]¦
+----------------------+
Whereas, Thomas Muirhead in the above entitled action did obtain judgment in the Circuit Court in the county of Kenosha, in the above entitled action against John Bruns, the above named defendant for Two Thousand ($2000.00) Dollars, and the costs of said action whereupon execution has been issued directed and delivered to the said Frank Willems, sheriff of Kenosha county, commanding him, among other things, to arrest the said John Bruns on said execution and thereupon the said Frank Willems, sheriff of Kenosha county, did arrest the said John Bruns and now has him in his custody at the county jail of Kenosha county.
Now, therefore, the condition of this obligation is such that if the said defendant John Bruns shall remain a true and faithful prisoner and shall not escape or go without the limits of jail liberties as defined by section 336.15 of the statutes of Wisconsin for the year 1925, until discharged by due course of law, then this obligation to be void, else to remain in full force and virtue.
+----------------------+
¦John M. Bruns ¦[Seal.]¦
+--------------+-------¦
¦John P. Bruns ¦[Seal.]¦
+----------------------+
Signed, sealed, and delivered in presence of Robert V. Baker, R. A. Willems.”
(Then follows the justification of the defendant John P. Bruns, and the written approval of such bond by the sheriff, as required by law.)
It is then alleged that on the 15th day of May, 1926, the said sheriff executed a purported assignment of all his right, title, and interest in and to said bond, to the plaintiff; that thereafter (meaning after the date of the execution of said bond), and between the 15th day of May, 1926, and the 14th day of February, 1927, and especially on the 14th day of February, 1927, the said defendant John Bruns escaped and went without the limits of the jail liberties, contrary to the provisions of said bond as defined by section 336.15 of the statutes, and failed to remain a true and faithful prisoner, in consequence of which the defendants have become and now are indebted to the plaintiff in the sum of $2,288.88 (the amount of the bond, together with interest from December 24, 1925, the date of the entry of the aforesaid judgment).
The defendants separately interposed a general demurrer to the complaint, which demurrers were overruled by the court. The defendants then answered, whereupon plaintiff moved for judgment against both of the defendants upon the answers so pleaded, which motion was granted by the court, and, upon the entry thereof, this appeal was prosecuted.
Robert V. Baker, of Kenosha, for appellants.
Stewart & Vaudreuil, of Kenosha, for respondent.
[1] In the first issue raised by defendants' counsel he contends that the bond was not assignable at the time the assignment was executed, for the reason that it does not affirmatively appear that the bond had been breached prior to the execution of its assignment. Each of the answers contains an admission of a technical breach of the bond by the defendant John Bruns on the 14th day of February, 1927, and a general allegation of other alleged breaches of the bond contained in the complaint, without specifying the dates thereof, are covered by a general denial. On the motion for judgment, therefore, alleged breaches prior to the 14th day of February, 1927, are placed in issue, so that the plaintiff upon his motion was confined and limited to the specific breach admitted, which occurred on the 14th day of February, 1927.
[2] Section 336.27 of the Statutes provides:
Said section 336.27 is substantially like the provision of section 18 of chapter 483 of the Laws of Wisconsin for the year 1864, entitled, “An Act to Establish and Define the Liberties of Jails, and Admitting Persons Thereto,” so that during this long interval such statute (which evidently was taken from the statutes of New York) has continuously constituted the law of this state on the subject of a bond like that involved in the instant case.
In 17 Cyc. p. 1535, it is said: See, also, 5 C. J. 528; Tunison v. Cramer, 5 N. J. Law, 498, 499; Barns v....
To continue reading
Request your trial
- Ernest v. Schmidt
-
Rutzen v. Mitten
... ... Although it was intimated in Muirhead v. Bruns, 1929, 198 Wis. 104, 223 N.W. 565, that justification is required, we find no such provision in the statute. This particular point was not ... ...