Bocook v. Rogler

• Decision Date: 27 January 1940
• Docket Number: 34563.,34562
• Citation: Bocook v. Rogler, 98 P.2d 94, 151 Kan. 274 (Kan. 1940)
• Parties: BOCOOK v. ROGLER et al. (two cases).
• Court: Kansas Supreme Court

98 P.2d 94

151 Kan. 274

BOCOOK v. ROGLER et al. (two cases).

Nos. 34562, 34563.

Supreme Court of Kansas

January 27, 1940

Syllabus by the Court.

Where defendants on appeal from judgment for possession of realty gave supersedeas bonds, and on affirmance of judgment a writ was issued to sheriff to put plaintiff in possession of realty, subsequent agreement between plaintiff and defendants whereby plaintiff asked sheriff to delay service of writ for nine days to permit defendants to find other property did not release sureties on supersedeas bonds.

Plaintiff recovered judgment for possession of certain real property. Defendant appealed and gave a supersedeas bond. The judgment was affirmed and a writ was issued to the sheriff to put plaintiff in possession of the property. Held, the fact that by an agreement with the defendant plaintiff asked the sheriff to delay service of the writ for a few days did not release the sureties on the supersedeas bond.

Appeal from District Court, Chase County; Joe Rolston, Jr., Judge.

Actions by J. E. Bocook against Albert Rogler and others to recover on supersedeas bonds. From judgments for plaintiff defendants appeal.

Dennis Madden, of Topeka, and Dudley Doolittle, of Strong City, for appellants.

Carl A Ballweg, of Cottonwood Falls, for appellee.

HARVEY Justice.

In previous litigation between the parties Bocook had recovered judgment against the Roglers in the district court. They appealed, and in each of two cases gave a supersedeas bond. The judgments of the trial court were affirmed. Rogler v Bocook, 146 Kan. 933, 73 P.2d 1100, and Rogler v Bocook, 148 Kan. 858, 84 P.2d 893. This litigation involved a certain residence property in Cottonwood Falls and one of them was an action for forcible detention originally brought before a justice of the peace. On January 8, 1939, after this court's decision in the last of the cases above mentioned and Bocook's title and right to the possession of the residence property had been determined, Bocook had a writ of restitution issued out of the justice of the peace court to be put into possession of the property. On February 9, 1939, the sheriff went to the residence to place Bocook in possession thereof. The Roglers wanted a few days' time to get a place to move, whereupon they and Bocook entered into a written agreement, the substance of which was that Bocook would ask the sheriff not to serve the writ of restitution before February 18, which was the last day he would have to serve it, in consideration of which the Roglers agreed to vacate the premises by that date and if not Bocook could have the sheriff proceed to place him in possession. The Roglers surrendered possession of the property before the 18th.

These two actions were by Bocook against the Roglers and the sureties on their respective supersedeas bonds. The answers contained a paragraph setting up the agreement made between Bocook and the Roglers February 9, 1939, and alleged that by virtue of it the sureties on the supersedeas bonds were released. The trial court sustained plaintiff's demurrer to this paragraph of the answers. The cases proceeded to trial, resulting in a judgment for plaintiff...