Court: Wisconsin Supreme Court; October 8, 1957; Wisconsin; State Supreme Court
The circuit court should have overruled Monart’s demurrer to the first affirmative defense and dismissed the complaint, rendering unnecessary any discussion on the propriety of directing a verdict for the defendant. The parties agreed that the circuit court should review the county court file during the demurrer ruling. The Boeing estate's assets were reportedly of limited value, with Monart's petition claiming they did not exceed $1,000, while Boeing’s mother later asserted a value up to $15,000. The evidence suggested overlapping property valuations between the two petitioners. Monart had previously sold household furniture for $1,000 and collected a total of $1,009.42 from life insurance and a bank balance, indicating that Monart's aim in pursuing the claim was likely to affirm its right to retain sale proceeds.
At a June 22, 1955, hearing regarding Monart's claim, testimony was presented, including an auditor's report, but lacked input from certain employees and customers. The administrator sought to limit the claim to unpaid checks, which the court orally granted, disallowing any claims beyond that amount. The order noted the claimant's evidence was fully presented, while the administrator offered none. The court did not find evidence of defalcation but concluded there was insufficient proof of liability beyond the checks. Home Indemnity contended that the county court's disallowance of Monart's claim barred any subsequent claims against them, as they would gain subrogation rights if they paid Monart under the bond. Conversely, Monart argued the county court lacked jurisdiction over tort claims and that the disallowance was merely a nonsuit, allowing for future actions. While the county court cannot adjudicate pure tort claims, it can handle implied contract claims stemming from tort facts, as established in relevant case law, confirming that conversion claims can be pursued against an estate.
The county court's order is not considered a dismissal without prejudice, as it did not explicitly state that it was so, and implications drawn from the court's findings relate to the insufficiency of evidence rather than resolving conflicts. In Gale v. Best, the court ruled that a county court's disallowance of a claim serves as a bar to subsequent actions in circuit court, regardless of the reasoning behind the decision. If either Monart or Home Indemnity were to sue the administrator regarding Boeing's alleged defalcation, the county court's disallowance would prevent recovery. A release from Monart to the administrator would also hinder Home Indemnity's ability to recover from the administrator if it compensates Monart.
In cases where a principal is judged favorably on the merits, that judgment bars actions against the surety. The trial court noted the estate's limited asset value, but this does not justify ignoring the county court's disallowance. Plaintiff seeks to recover $52,693.70, but the bond limits recovery to $20,000, payable only after Monart is fully compensated for its loss. Home Indemnity would not receive any reimbursement until recovery exceeds $32,000. Although recovery may seem improbable, it is not legally impossible, and the adverse determination in county court cannot be disregarded based on this improbability. Furthermore, if Monart can only prove a portion of its claimed loss, any recovery from the estate, even if minimal, could benefit Home Indemnity due to subrogation rights, making it unnecessary to apply principles from Restatement, Judgments.
A valid judgment favoring a defendant in a tort or breach of contract case precludes the plaintiff from bringing a subsequent action against another party based solely on the same underlying tort or breach, regardless of any right to indemnity. In this situation, Monart could recover up to $10,000 for losses from Bruno's dishonest acts and an additional $5,000 for any other employee's dishonest acts proven. However, Monart's claim against Boeing hinges on the assertion that Boeing took Monart's money. Since the claim against the Boeing estate was disallowed, establishing that Boeing did not take the money negates Monart's current action against Home Indemnity. Consequently, the circuit court should have rejected the demurrer to the first affirmative defense and dismissed Monart's complaint based on the existing facts. Additionally, the respondent's application for costs related to excessive printing was denied due to a lack of proof of service, as required by Supreme Court Rule 44. The court reversed the order sustaining the demurrer and affirmed the judgment, ruling no printing costs would be taxed.
