Russell v. Phoenix Assur. Co. of N. Y.
| Citation | 188 Kan. 424,362 P.2d 430 |
| Decision Date | 10 June 1961 |
| Docket Number | No. 42307,42307 |
| Parties | P. D. RUSSELL, d/b/a Russell Grocery, Appellee, v. PHOENIX ASSURANCE COMPANY OF NEW YORK, a Corporation, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
Following Barclay v. Mitchum, 186 Kan. 463, 350 P.2d 1109, failure to file a motion for new trial limits the scope of appellate review to the single proposition that if the petition and the findings support the trial court's judgment, it will be affirmed on appeal.
Karl V. Shawver, Jr., Paola, argued the cause, and Karl V. Shawver, Paola, was with him on the briefs for appellant.
Douglas Hudson, Fort Scott, argued the cause, and Howard Hudson and Douglas G. Hudson, Fort Scott, were with him on the brief for appellee.
This was an action for the recovery of money on a contractor's statutory bond.
Plaintiff filed a bill of particulars in a justice of the peace court of Bourbon county against William A. Reser, d/b/a Continental Construction Co., and Phoenix Assurance Company of New York, a corporation, defendant (appellant) herein. The case was appealed to the district court by defendant Phoenix Assurance Company, and from a judgment for the plaintiff in that court, defendant appeals.
P. D. Russell, plaintiff (appellee), alleged in his bill of particulars that William A. Reser, d/b/a Continental Construction Co., entered into a contract with the city of Bronson to construct and complete certain pipe lines and other portions of a municipal water works.
It was further alleged that in connection with the contract executed by Reser and the city, he, as principal, and the Phoenix Assurance Company of New York, as surety, executed a statutory bond as provided and required by G.S.1949, 60-1413 and 60-1414, by the terms of which the defendants obligated themselves to pay 'all indebtedness incurred for supplies, materials or labor furnished, used or consumed in connection with or in or about the construction of said public building or in making such public improvements, including gasoline, lubricating oils, fuel oils, greases, coal and similar items used or consumed directly in furtherance of such improvements.'
It was also alleged that the defendants were indebted to the plaintiff in the sum of $108.98 with interest upon an account and indebtedness contracted by Reser, for which defendant Phoenix Assurance Company was liable under the bond.
The case went to trial on the aforementioned bill of particulars. No other pleading was filed in the district court. A jury was waived and evidence adduced. William A. Reser did not appear at the trial and no service was had upon him. The trial court found that defendant Phoenix Assurance Company was justly indebted to the plaintiff on account of and in connection with the bond mentioned in the bill of particulars in the sum of $100, which it had refused...
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Andrews v. Hand
...... In the absence of such a motion, alleged trial errors are not open to appellate review (Russell v. Phoenix Assurance Co., 188 Kan. 424, 362 P.2d 430), and inquiry [190 Kan. 111] will not be made ......
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Tracy v. T & B Const. Co.
...... Russell v. Phoenix Assurance Co. of New York, 188 Kan. 424, 362 P.2d 430; Logsdon v. Phoenix Assurance ......
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State of Kan. ex rel. American Steel Works v. Hartford Acc. & Indem. Co.
......Phoenix Mut. Life Ins. Co. of Hartford, Conn. v. Harris, Mo.Sup., 121 S.W.2d 141; State ex rel. Equitable ife Assur. Soc. of United States v. . Page 723. Allen, Mo.Sup., 136 S.W.2d 309; and Johnson v. Fire Ass'n ... The case of Russell v. Phoenix Assurance Co. of New York, 188 Kan. 424, 362 P.2d 430, decided in 1961, was an action ......
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Donaldson v. State Highway Commission
...... an appeal from the motion for new trial since it would be in the nature of a trial error (Russell v. Phoenix Assurance Co., 188 Kan. 424, 362 P.2d 430; Dick v. Dick, 188 Kan. 487, 363 P.2d 457; ......