Knowles v. Frawley

Wisconsin Supreme Court

Knowles v. Frawley

54 N.W. 107, 84 Wis. 119, 1893 Wisc. LEXIS 23

CourtWisconsin Supreme Court

DecidedJanuary 10, 1893

StatusPublished

Cited by1 cases

This text of 54 N.W. 107 (Knowles v. Frawley) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Knowles v. Frawley, 54 N.W. 107, 84 Wis. 119, 1893 Wisc. LEXIS 23 (Wis. 1893).

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Opinion

LyoN, C. J.

This action was brought under the provisions of sec. 2948, B. S., which reads as follows: “ In any [121]*121case in which the defendant, at the time of the commencement of the action, shall by law be entitled to require security for costs, the attorney for the plaintiff shall be liable for such costs, to an amount not exceeding one hundred dollars, until security therefor be filed, as herein provided, whether such security shall have been required by the defendant or not; but such attorney may relieve himself from such liability by filing an undertaking as hereinbe-fore prescribed, and giving notice thereof, without being required so to do by the defendant.”

It appears from the complaint that at the time of the commencement of the several actions mentioned therein the plaintiff in those actions, William Lockin, was a nonresident of this state, and hence that the defendants in each such action were entitled to require security for costs. R. S. sec. 2943. No such security was filed in either action;, hence the defendant in each action, having recovered judgment against the plaintiff therein, became entitled, under sec. 2948, to maintain an action for his costs against these defendants, who were the attorneys of Lockin in the actions mentioned in the complaint.

The complaint also alleges the assignment by the judgment creditor, in each of said actions, of such judgment, and of the claim of such judgment creditor against these defendants for such costs. If, therefore, the claims are assignable, the complaint states a cause of action in favor of the plaintiffs and against these defendants. Notwithstanding the very ingenious argument of the defendants to the contrary, we cannot doubt that such claims are assignable, and that the action is well brought by the plaintiffs. Sec. 2948 raises an implied contract by the defendants that, if they fail to relieve themselves from liability for the costs sued for by giving the undertaking mentioned therein, they will thereby become liable for such costs. Having failed thus to relieve themselves from such = Liability, they have [122]*122become liable for such costs, not as sureties merely, but as principal debtors. The statute does not make their liability collateral, but their obligation is to pay such costs. We think the circuit court properly overruled the demurrer.

By the Court.— Order affirmed.

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LyoN, C. J.

This action was brought under the provisions of sec. 2948, B. S., which reads as follows: “ In any [121]*121case in which the defendant, at the time of the commencement of the action, shall by law be entitled to require security for costs, the attorney for the plaintiff shall be liable for such costs, to an amount not exceeding one hundred dollars, until security therefor be filed, as herein provided, whether such security shall have been required by the defendant or not; but such attorney may relieve himself from such liability by filing an undertaking as hereinbe-fore prescribed, and giving notice thereof, without being required so to do by the defendant.”

It appears from the complaint that at the time of the commencement of the several actions mentioned therein the plaintiff in those actions, William Lockin, was a nonresident of this state, and hence that the defendants in each such action were entitled to require security for costs. R. S. sec. 2943. No such security was filed in either action;, hence the defendant in each action, having recovered judgment against the plaintiff therein, became entitled, under sec. 2948, to maintain an action for his costs against these defendants, who were the attorneys of Lockin in the actions mentioned in the complaint.

The complaint also alleges the assignment by the judgment creditor, in each of said actions, of such judgment, and of the claim of such judgment creditor against these defendants for such costs. If, therefore, the claims are assignable, the complaint states a cause of action in favor of the plaintiffs and against these defendants. Notwithstanding the very ingenious argument of the defendants to the contrary, we cannot doubt that such claims are assignable, and that the action is well brought by the plaintiffs. Sec. 2948 raises an implied contract by the defendants that, if they fail to relieve themselves from liability for the costs sued for by giving the undertaking mentioned therein, they will thereby become liable for such costs. Having failed thus to relieve themselves from such = Liability, they have [122]*122become liable for such costs, not as sureties merely, but as principal debtors. The statute does not make their liability collateral, but their obligation is to pay such costs. We think the circuit court properly overruled the demurrer.

By the Court.— Order affirmed.

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Bluebook (online)

54 N.W. 107, 84 Wis. 119, 1893 Wisc. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knowles-v-frawley-wis-1893.

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