Ryan v. Malone

Timlin, J. Edward H. Byan was a party to the proceeding brought by the respondent by petition and which reached this court and is reported in 124 Wis. 114, 102 IST. W. 354. He was mentioned in the petition as one of the persons against whom relief was sought, and the order to show cause required that he be served, and he appeared and [296] filed an affidavit in answer to tbe petition. In Snyder v. Malone, supra, it was determined that tbe note in question was originally given by Malone to Lorenze under an oral agreement, made at tbe time of its execution, to tbe effect that tbe note should not be deemed delivered and become operative until Lorenze should procure and submit to Malone a life insurance policy for bis acceptance, and if tbe policy was not accepted this note was to be returned to Malone. No such policy was submitted to and accepted by Malone, but Lorenze indorsed tbe note to an innocent purchaser and afterward paid tbe judgment which tbe innocent purchaser, Snyder, obtained thereon against Lorenze and Malone, and took an assignment of such judgment in tbe name of the appellant, Ryan. Tbe legal effect of Lorenze’s conduct in wrongfully transferring tbe note and permitting it to go to judgment against himself and Malone rendered him in law tbe principal judgment debtor and primarily liable as between him and Malone, and bis payment of it to Snyder operated to satisfy and extinguish it notwithstanding the assignment. This determination was made upon tbe record presented to this court, which covered such claim on tbe part of Malone. It was made, as we have seen, in a proceeding to which tbe appellant, Ryan, was a party, and upon a vital point in tbe controversy. It is consequently conclusive against tbe appellant in tbe instant case. Appellant seeks to avoid tbe effect of this adjudication by claiming that Ryan was not a party to tbe proceeding to recall tbe execution, etc. He basés this upon tbe narrow proposition that in tbe judgment and execution Snyder was party plaintiff and Lorenze and Malone were parties defendant; but, as we have seen, Ryan, as assignee of tbe judgment, was also made a party by tbe petition and order to show cause. What tbe effect of that judgment would have been bad Ryan not been a party we need not determine, although it may be proper to remind tbe appellant that privies as well as parties are bound by judg297 meats aud that tbe assignee or transferee of a demand is in privity with bis assignor or transferrer. By the Gourt. — Tbe judgment of tbe circuit court is affirmed.