
    Appeal of Ernestine Guenther.
    Alimony. How arrears of alimony dm at divorced husband's death, to be recovered.
    
    1. A divorced wife, after the death of the husband, can enforce payment, by his administrator, of arrears of alimony due her, only by proceeding as for a claim against the decedent’s estate in the manner prescribed by the statutes,in that behalf; and not by a motion in the divorce suit that the administrator be ordered to pay the judgment for alimony; especially where such motion is made within three months after the decease of the judgment debtor, and it is not shown that the administrator has received, or is likely to receive, property of the estate axoplicable to such purpose.
    2. The surety on the judgment debtor’s bond can be compelled to pay arrears of alimony, only by an action on the bond, and not by an order of the court in the divorce suit, or other summary proceeding.
    APPEAL from tbe County Court of Milwaukee County.
    Tbe notice of tbe appeal, and tbe undertaking accompanying it, are eacb entitled as follows: “ County Court for Milwaukee County. Ernestine Guenther, Relator, agavnst Frederick W. Cotzbauzen, Administrator of the estate of August G-uenther, late of tbe aforesaid county, deceased, and William H. Jacobs, Respondents.” It does not appear that there is now, or ever was, any such action pending in that court; but the' proceeding which resulted in tbe order from which this aj>-peal was taken, was in tbe case of August Guenther v. Ernes-tme Guenther, then lately pending in that court.
    That was an action for a divorce, in which tbe plaintiff was defeated; but tbe defendant prevailed therein on a counterclaim for a divorce. In tbe judgment for a. divorce, tbe court awarded tbe appellant (tbe defendant in that action) fifty-two dollars per month as alimony and for tbe support of minor children of tbe parties, tbe custody of whom was given to her. Tbe judgment required tbe plaintiff to pay such alimony monthly, and to give security for tbe payment thereof, to be approved by tbe clerk of tbe court. Such security was given in tbe form of a bond in tbe penal sum of $6,250, executed by August Guenther and William JET. Jacobs to tbe said Ernestine, and conditioned for tbe payment of such allowance according to tbe judgment of tbe court. This bond was duly approved by tbe court, and bears date June 5,1874.
    It seems that all the installments of tbe allowance were paid, to and including tbe installment which became due April 1, 1875. August Guenther died June 12, 1875 ; and afterwards (but at what time does not appear) F. W. Coizhamsen, Esq., was duly appointed administrator of his estate, and entered upon the discharge of his duties as such.
    Payment of the installments of said allowance which became due on the first days of May, June, July and August, 1875, respectively, having been demanded (but of whom does not appear), and none of them having been paid, a motion was made in the county court, in August, 1875, on behalf of said Ernestine, and founded on her affidavit (in which the foregoing facts are stated), and on such judgment and bond, for an order “ requiring the immediate payment of all matured and deferred payments of said alimony referred to by her in her said affidavit, together with her damages sustained on account of the nonpayment thereof according to the tenor and effect, and at the time and times and in the manner required by said decree, together with her necessary disbursements and costs incurred by this proceeding, and such other and further order consequent upon the wrongful and contemptuous actings and doings of the said parties to whom the foregoing order is directed, as the honorable court in that behalf may deem just and proper to grant.” There was also an order on Cotzhausen and Jacobs to show cause why sxxch relief should not be granted.
    The motion was denied, and Ernestine Guenther appealed from the order of denial.
    
      E. Fox Cook, for appellant,
    contended, inter alia, that the payment of alimony according to the provisions of the bond executed pursuant to the decree, may be enforced by proceedings in their nature supplementary, in the same action, citing Helden v. Helden, 7 Mis., 296; S. C., 9 id., 557, and 11 id., 554; Alcerly v. Vilas, 15 id., 412; Prescott v. Everts, 4 id., 314; Story’s Eq. Jur. (4th ed.), § 64, and note (i) on p. 83. To the extent of the bond, the surety is a quasi party to the action. Ward v. Claris, 6 Mis., 509; Tail-man v. EIaj, id., 244. As to the right of action against the survivor of two joint obligors, be cited 8'wimer v. Powell, 2 Mer., 30, 35, 36; South v. Tanner,2 Taunt., 254; 1 Dunlap’s Nr., 32, 33, and authorities there given ; OaJdey v.A&pmwall, 4 Corns., 524; Caswell v. Engelmann, 31 Wis., 93; School District v. Dy-ford, 27 id., 506.
    The cause was submitted for the respondents on the briefs of their respective counsel.
    
      Sam. M. Dixon, for respondent Jacobs:
    
    1. Under the state constitution (art. 1, sec. 5), a trial by jury can be waived only “ in the manner provided by law.” There was nothing in the execution of this bond constituting such a waiver. The obligation of a surety is strictissimi juris; and as against him there are no implied remedies; and there is nothing in the statute authorizing the bond, which gives the remedy here sought. 2. When the bond was given, a valid independent contract, and a good common law obligation (Lewis v. Stout, 22- Wis., 237), alimony eo nomine ceased, being superseded by the bond. The obligation having assumed this new form, it is withdrawn from the jurisdiction of the divorce court, and the common law only obtains. 3. If the divorce court retains any right by further order to modify its former order on the subject (E. $., ch. Ill, sec. 20), then, by the terms of the judgment, as well as of the bond, such further order will absolve the surety from his obligation, which only extends “ until the further order of the court.”
    
      E. P. Smith, for respondent Cotzhausen:
    
    The death of August Guenther abated any immediate right of action, and rendered the joint obligation of the bond joint and several, so that the claim (if valid) could have been allowed by the commissioners of the Guenther estate, and the surviving debtor would have been liable, at the suit of the administrator, for contribution. No original action at law can be maintained based on the indebtedness of the deceased, until the expiration of the time limited for the payment of debts. N. S., ch. 101, sec. 15. But that the right of trial by jury may remain inviolate, an appeal is allowed from tbe commissioners to tbe circuit court, where an issue may be made up and a jury trial bad. 2. Even if it were admitted that J:tcobs became a quasi party to tbe divorce suit, and if tbe statute above cited did not control, these proceedings could not be maintained against tbe administrator. Tbe judgment or order must be against botb of tbe obligors on tbe bond, and, until revived, tbe action could not be prosecuted to judgment against Jacobs or tbe administrator. 2 Bac. Abr., p. 11, F. 3. Tbe bond given in pursuance of tbe statute, with tbe consent of all tbe parties, stood in lieu of actual payment. And it would be strange to bold an administrator in contempt for bis intestate’s neglect to pay, and bis own refusal to pay, at a time when be bad no authority to do so, and when, so far as this record shows, be bad no assets in bis bands with which to make such payment.
   Lyon, J.

The motion which the county court denied, was in the nature of, or preliminary to, a proceeding as for a contempt to enforce a civil remedy. We are not aware of the existence of any law, statutory or otherwise, which required or authorized the court to grant the motion. The appellant can only enforce payment of her judgment for alimony out of the estate of the judgment debtor, by proceeding in the manner prescribed by the statutes in that behalf. A mere motion that the administrator of the estate of the deceased judgment debtor be ordered to pay the judgment, is ineffectual to enforce such payment. This is especially true in the present case, wherein the motion was made within less than three months after the decease of the judgment debtor, and it is not shown that the administrator has received, or is likely to receive, any money or property of bis estate applicable to the payment of the judgment.

If the appellant desires to compel Mr. Jacobs to pay the judgment, she can only do so by bringing an action against Mm on Ms bond to her. There is no law authorizing summary proceedings against him to compel him to pay the judgment, or to render him liable to be sent to prison should he fail to do so. His obligation to the appellant is solely a covenant or contract obligation, and manifestly it cannot be enforced in any such proceeding.

The appellant has wholly mistaken her remedy, and the order appealed from must necessarily be affirmed.

By the Oowrt. — Order affirmed.  