MUDROCH v. NEW AMSTERDAM CASUALTY CO., 7 Wis.2d 57 (1959)

95 N.W.2d 759

MUDROCH and another, Respondents, v. NEW AMSTERDAM CASUALTY COMPANY, Appellant.

Supreme Court of Wisconsin.March 4, 1959 —
April 7, 1959.

Page 58

APPEAL from an order of the circuit court for Milwaukee county: MYRON L. GORDON, Circuit Judge. Affirmed.

This is an action by the obligees against the surety on an administrator’s bond. The surety demurred to the complaint. The trial court overruled the demurrer. The surety has appealed.

Plaintiffs are the judges of the county court of Milwaukee county. Their complaint alleges that when the said judges appointed Emil F. Sander administrator of the estate of Emilie Sander he gave bond to the judges for the faithful performance of his duties as administrator. Defendant New Amsterdam Casualty Company was the surety on the bond. The administrator embezzled funds from the estate and converted them to his own use. The county court removed the administrator and appointed a successor. Sander died a month or two later and his estate is unable to make restitution. The plaintiffs, who are the obligees of the bond on which defendant is surety, have brought this action on the bond against the surety.

The surety demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action.

For the appellant there was a brief and oral argument b Eugene Wengert, attorney, and Wallace H. Hahn, Jr., of counsel, both of Milwaukee.

For the respondents there was a brief by Charlton, Yanisch, Binzak Ritchay, attorneys, and Richard F. Yanisch of counsel, all of Milwaukee, and oral argument b Richard F. Yanisch.

Page 59

BROWN, J.

The complaint clearly alleges that the principal on the bond has defaulted in performance for which the surety insured the obligees. It is equally clear that the obligees, the plaintiffs, thereby acquired a right of action on the bond against the surety.

The surety, defendant, contends that the complaint did not allege that certain procedural steps were taken in the settlement of the estates of Emilie Sander or of Emil F. Sander. We do not consider that the omission of such allegations in the complaint prevents the complaint from stating a cause of action.

The surety submits that the complaint shows on its face that the interval between the appointment of Sander as administrator in 1928 and his removal as such in 1957 is so great that there is laches which, as a matter of law, will defeat plaintiffs’ action.

In our opinion the learned trial court correctly disposed of this contention:

“The defendant also contends that equity only aids the vigilant, and that the plaintiffs have slept on their rights. This may be a proper defense upon the action, but it does not appear from the face of the complaint that the failures on the part of the administrator were or should have been known to the plaintiffs herein so as to bar them, by equitable doctrine, from pursuing relief in this court.”

We affirm the order overruling defendant’s demurrer.

By the Court. — Order affirmed.

Page 60