Wis ex rel. Kadin v. Bristol

• Decision Date: 11 October 1938
• Citation: 281 N.W. 686,229 Wis. 95
• Parties: GOVERNOR OF WISCONSIN ex rel. KADIN v. BRISTOL et al.
• Court: Wisconsin Supreme Court

229 Wis. 95

281 N.W. 686

GOVERNOR OF WISCONSIN ex rel. KADIN

v.BRISTOL et al.

Supreme Court of Wisconsin.

Oct. 11, 1938.

Appeal from an order of the Circuit Court for Fond du Lac County; Clayton F. Van Pelt, Judge.

Affirmed.

In the action, the plaintiff, The Governor of the State of Wisconsin on the relation of George Kadin, seeks to recover damages from the defendants, Alvin M. Bristol and Aetna Casualty and Surety Company, on a bond signed by them as principal and surety, respectively, which damages, it is alleged, were sustained by the relator as a result of the negligence of the defendant, Bristol, while acting as a notary public. The defendants demurred to the complaint. The court, after due hearing, sustained the demurrer. From an order sustaining the demurrer, entered January 20, 1938, the plaintiff appealed.

Theodore Kramer, of Milwaukee (William E. Kaplan, of Milwaukee, of counsel), for appellant.

Fellenz, Boreson & Worthing, of Fond du Lac, for respondents.

NELSON, Justice.

The relator contends that the complaint states a good cause of action against the defendants and that the trial court erred in sustaining the demurrer. The allegations of the amended complaint, so far as they need be summarized or specifically recited, are as follows: The relator, George Kadin, is a jeweler and resides in the city of Milwaukee. At all of the times mentioned in the complaint, the defendant, Alvin M. Bristol, was a duly appointed, qualified and acting notary public residing at Oakfield, in this state. In qualifying for that office, the defendant, Bristol, filed with the secretary of state a bond in the sum of $500 signed by him as principal and by the defendant, Aetna Casualty and Surety Company, as surety, conditioned that the defendant, Bristol, would faithfully discharge the duties of his said office. On or about April 22, 1936, the relator employed one Fred L. Miller to purchase old gold for him in certain parts of this state. It was necessary for the relator, from time to time, to advance moneys to the said Miller for such purposes. Before advancing moneys to the said Miller, the relator required him to furnish a bond in the sum of $500 for the protection of the relator against the former's defaults. A bond was furnished by the said Miller, signed by him as principal and by his father, Frank Miller, and his mother, Ida Miller, as sureties. Thereafter the said Fred L. Miller defaulted to the extent of $500. The relator thereafter obtained a judgment for $561.90 against him and his sureties. A transcript of said judgment was, on March 8, 1937, filed in Fond du Lac county. Thereafter execution was issued and returned wholly unsatisfied. It is then specifically alleged in the complaint:

“Twelve. Relator further alleges that in supplemental proceedings held on the 16th day of June, 1937, before W. W. Hughes, Court Commissioner in and for Fond du Lac county, Wisconsin, the examination revealed that the said bond executed by the said Frank Miller was signed in blank; that statements as to the defendant, Frank Miller's worth being Ten Thousand ($10,000.00) Dollars were filled in by others after the said Frank Miller had left the premises.

“Thirteen. Relator further alleges that the examination in supplemental proceedings revealed that the said defendant Frank Miller was not worth the sum of Ten Thousand ($10,000.00) Dollars over and above his debts and liabilities and property exempt from execution at the time of the execution of said bond; that in truth and in fact the said Frank Miller is insolvent and had no assets upon which a sum in the amount of Five Hundred ($500.00) Dollars can be relied, and that such condition existed at the time that the said bond was executed.

“Fourteen. Relator further alleges upon information and belief that the said bond was improperly executed by the said Frank Miller as surety and that the cause of said improper execution was the negligence of the defendant, Alvin M. Bristol.

“Fifteen. That the relator relied upon the signed statement of the defendant, Frank Miller as notaried by the defendant Alvin M. Bristol in making advances of money from time to time to the said Fred L. Miller.

“Sixteen. That the relator has exhausted his remedies against Frank Miller, Fred L. Miller and Ida Miller the sureties on said bond.

“Seventeen. That as a result of the false certificate made by Alvin M. Bristol, the relator has suffered damages in the sum of $561.90 plus his subsequent costs and disbursements.”

The complaint demands judgment against the defendants for the sum of $500, together with costs and the disbursements of the action.

The record returned contains no written decision of the trial, but from the briefs it appears that the trial court was of the opinion that the complaint does not state a cause of action because upon its face it appears that the damages alleged to have been sustained by the relator were not proximately caused by any act or neglect of the...