Cited by

& Loan Co. v. Bartsch, 51 Minn. 474 , , as it has been interpreted, defendant was obligated as a matter of law, under the express language of its surety agreement, to pay any judgment rendered against Lynbrook upon Lynbrook’s failure to pay, even though it had not been *494 given notice of plaintiff’s motion for summary judgment or an oppor

& Loan *67 Co. v. Bartsch, 51 Minn. 474 , , 38 A. S. R. 511; Bunge v. Yager, 236 Minn. 245 , 52 N. W. (2d) 446 .

In holding the municipality not liable, Judge Mitchell stated ( 51 Minn. 472 , ): “But it is also generally held that they are not liable for negligence in the performance of a public, governmental duty imposed upon them for public benefit, and from which the municipality in its corporate or proprietary capacity derives no pecuniary profit.

& Loan Co. v. Bartsch, 51 Minn. 474, 479 , , 38 A. S. R. 511, speaking through Mr. Justice Mitchell, we said: “It is well settled that parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action.

nt of an action and tendered the defense, whether he appears or not, “the person responsible over is no longer regarded as a stranger, because he has the right to appear and defend the action and has the same means and advantages of controverting the claim as if he were the real and nominal party on the record.” 15 R. C. L. p. 1017, § 489, notes 2 and 3, citing Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474 , , 38 A. S. R. 511; Clarke v. Carrington, 7 Cranch (U. S.) 308, 3 L. ed. 354, by Chief

Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474 , , 38 A. S. R. 511; American Bldg.

The rule is “that parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action.” Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474, 479 , , 38 A. S. R. 511.

Hence its liability is fixed and the judgment in the replevin action conclusive against it under the rule of Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474 , , 38 A. S. R. 511.

Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474, 479 , , 38 Am.

Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474, 479 , , 38 Am.

& Loan Co. v. Bartsch, 51 Minn. 474 , , 38 Am.

Pioneer Savings & Loan Co. v. Bartsch, 51 Minn. 474 , , 38 Am.

Jacobson v. Anderson, 72 Minn. 426 , ; Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474 , , 38 Am.

The rule of this court in this respect is stated by Justice Mitchell in the case of Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474, 477 , , as follows: “Of course every one is familiar with the rule that, as against any one except the parties and their privies, a judgment is evidence only of the fact of its' recovery.

This genera] subject was considered at some length in Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474 , , and it was there said that logically there was no middle ground; that a judgment against a principal was either conclusive or no evidence at all against a surety; and that logically it was evidence of nothing against the surety except of the fact of its recovery, except where, from the nature of his u

& Loan Co. v. Bartsch, 51 Minn. 474 , (53 N. W. Rep..

Mitchell, J. This was an action upon a bond in all respects substantially the same as those recently considered by this court in Pioneer Savings & L. Co. v. Bartsch, 51 Minn. 474 , ( 53 N. W. Rep.