Umbreit v. American Bonding Co. of Baltimore

Wisconsin Supreme Court

Umbreit v. American Bonding Co. of Baltimore

129 N.W. 789, 144 Wis. 611, 1911 Wisc. LEXIS 300

DecidedJanuary 31, 1911

StatusPublished

This text of 129 N.W. 789 (Umbreit v. American Bonding Co. of Baltimore) 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

Umbreit v. American Bonding Co. of Baltimore, 129 N.W. 789, 144 Wis. 611, 1911 Wisc. LEXIS 300 (Wis. 1911).

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Opinion

BaeNes, J.

The liability of a surety on an injunction bond given in a suit in the federal courts pursuant to a law of the United States is not governed by the local law of a par[613]*613ticular state, but is governed by the principles of jurisprudence adopted and'applied by the federal courts. Bein v. Heath, 12 How. 168; Tullock v. Mulvane, 184 U. S. 497, 513, 22 Sup. Ct. 372. By the laws of the United States as expounded by its courts, where the surety undertakes to pay such damages as may be “awarded?’ by reason of the issuance or continuance of an injunction, there is no breach of the condition of the bond as to the surety until the amount of the damages is assessed and determined by a court of competent jurisdiction, or in some other lawful way, and the principal ob-ligor has refused to pay the amount awarded; and no action can be maintained on the bond against the surety in the absence of such assessment. Bein v. Heath, supra; Deakin v. Lea, 11 Biss. 34, 38. It is the duty of this court to declare the federal law as it finds it, and what is here decided has no application to bonds given in actions and proceedings in the courts of this state. In view of what has £een said, it is unnecessary to determine whether the complaint shows the bond sued on to be only an ordinary supersedeas bond or a super-sedeas and injunction bond combined, and we do not determine that question.

The action is not brought on an award and the complaint shows affirmatively that none has been made. It follows that the complaint does not state a cause of action against the surety and that it was error to overrule the demurrer.

By the Court. — The order appealed from is reversed, and the cause is remanded with directions to enter an order sustaining the demurrer.

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BaeNes, J.

The liability of a surety on an injunction bond given in a suit in the federal courts pursuant to a law of the United States is not governed by the local law of a par[613]*613ticular state, but is governed by the principles of jurisprudence adopted and'applied by the federal courts. Bein v. Heath, 12 How. 168; Tullock v. Mulvane, 184 U. S. 497, 513, 22 Sup. Ct. 372. By the laws of the United States as expounded by its courts, where the surety undertakes to pay such damages as may be “awarded?’ by reason of the issuance or continuance of an injunction, there is no breach of the condition of the bond as to the surety until the amount of the damages is assessed and determined by a court of competent jurisdiction, or in some other lawful way, and the principal ob-ligor has refused to pay the amount awarded; and no action can be maintained on the bond against the surety in the absence of such assessment. Bein v. Heath, supra; Deakin v. Lea, 11 Biss. 34, 38. It is the duty of this court to declare the federal law as it finds it, and what is here decided has no application to bonds given in actions and proceedings in the courts of this state. In view of what has £een said, it is unnecessary to determine whether the complaint shows the bond sued on to be only an ordinary supersedeas bond or a super-sedeas and injunction bond combined, and we do not determine that question.

The action is not brought on an award and the complaint shows affirmatively that none has been made. It follows that the complaint does not state a cause of action against the surety and that it was error to overrule the demurrer.

By the Court. — The order appealed from is reversed, and the cause is remanded with directions to enter an order sustaining the demurrer.

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Bluebook (online)

129 N.W. 789, 144 Wis. 611, 1911 Wisc. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/umbreit-v-american-bonding-co-of-baltimore-wis-1911.

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