Lauer v. Bandow

Wisconsin Supreme Court

Lauer v. Bandow

4 N.W. 774, 48 Wis. 638, 1880 Wisc. LEXIS 173

CourtWisconsin Supreme Court

DecidedMarch 9, 1880

StatusPublished

Cited by7 cases

This text of 4 N.W. 774 (Lauer v. Bandow) 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

Lauer v. Bandow, 4 N.W. 774, 48 Wis. 638, 1880 Wisc. LEXIS 173 (Wis. 1880).

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Opinion

Lyoh, J.

The order from which this appeal was taken does not purport to set aside the personal judgment against the defendant Frederick A. Bandow. That judgment remains in full force, and the action as to him is finally determined. The order- under consideration opens the case as to the appellant, Mrs. Bandow, and allows the plaintiffs to prosecute their original claim against her alone. It seems to us that there is an insuperable obstacle to such a proceeding. The affidavits upon which the order was made, show at most that Mrs. Bandow was jointly indebted with her husband to the plaintiffs for the labor and materials mentioned in the complaint. It is perfectly well settled, that if the holder of a joint debt or obligation sues one of the joint debtors and obtains judgment thereon against him, 'and then sues another of the joint debtors for the same debt or obligation, the latter may plead such judgment against his co-debtor and bar the action. This is so because the joint debt is merged in the judgment against the debtor first sued, and, being indivisible, it cannot be merged or cancelled as to one, and existing and operative as to another joint debtor. Bowen v. Hastings, 47 Wis., 232, and cases cited.

This rule is applicable to the present case; for, manifestly, Mrs. Bandow is in the same position she would have occupied had the plaintiffs brought suit against her husband alone, and prosecuted it to judgment, and then brought their action [640]*640against her to charge her with tlie alleged joint liability. Although in form she was sued jointly with her husband, the original complaint failed to state a cause of action against her, and this proceeding is, in substance and effect, the commencement of a new action against her. But whether it be a new action or a continuation of the original suit, in either case the joint debt is merged in the judgment against the husband, and there is no cause of action remaining against Mrs. Bandow.

We perceive no escape from the conclusion that the order was improperly granted.

By the Court.— Order reversed.

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Lyoh, J.

The order from which this appeal was taken does not purport to set aside the personal judgment against the defendant Frederick A. Bandow. That judgment remains in full force, and the action as to him is finally determined. The order- under consideration opens the case as to the appellant, Mrs. Bandow, and allows the plaintiffs to prosecute their original claim against her alone. It seems to us that there is an insuperable obstacle to such a proceeding. The affidavits upon which the order was made, show at most that Mrs. Bandow was jointly indebted with her husband to the plaintiffs for the labor and materials mentioned in the complaint. It is perfectly well settled, that if the holder of a joint debt or obligation sues one of the joint debtors and obtains judgment thereon against him, 'and then sues another of the joint debtors for the same debt or obligation, the latter may plead such judgment against his co-debtor and bar the action. This is so because the joint debt is merged in the judgment against the debtor first sued, and, being indivisible, it cannot be merged or cancelled as to one, and existing and operative as to another joint debtor. Bowen v. Hastings, 47 Wis., 232, and cases cited.

This rule is applicable to the present case; for, manifestly, Mrs. Bandow is in the same position she would have occupied had the plaintiffs brought suit against her husband alone, and prosecuted it to judgment, and then brought their action [640]*640against her to charge her with tlie alleged joint liability. Although in form she was sued jointly with her husband, the original complaint failed to state a cause of action against her, and this proceeding is, in substance and effect, the commencement of a new action against her. But whether it be a new action or a continuation of the original suit, in either case the joint debt is merged in the judgment against the husband, and there is no cause of action remaining against Mrs. Bandow.

We perceive no escape from the conclusion that the order was improperly granted.

By the Court.— Order reversed.

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Bluebook (online)

4 N.W. 774, 48 Wis. 638, 1880 Wisc. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lauer-v-bandow-wis-1880.

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