Burton v. Decker

• Decision Date: 05 January 1895
• Citation: 54 Kan. 608,38 P. 783
• Parties: J. R. BURTON v. ELVINA M. DECKER
• Court: Kansas Supreme Court

38 P. 783

54 Kan. 608

J. R. BURTON v. ELVINA M. DECKER

Supreme Court of Kansas

January 5, 1895

Error from Dickinson District Court.

ACTION by Decker against Burton and another. From an order dismissing the action as to Brady, defendant Burton brings error. The facts are stated in the opinion herein, filed January 5, 1895.

Judgment reversed and cause remanded.

Stambaugh & Hurd, for plaintiff in error:

The judgment in favor of Brady against the Deckers should have been allowed as an offset or courterclaim against any amount that Mrs. Decker might have been entitled to recover in this case. When she commenced her action on the appeal bond she failed to make Brady a party, obviously for the reason that he held a large judgment against her. If one of the parties to an undertaking of this character has a complete defense or an offset or counterclaim which amounts to a complete defense, he is not only a proper party but a necessary party and it is the duty of the court, upon proper application, to make him such. The court properly ordered Brady to be made a party defendant, and it was error to order the case dismissed as to him. See Gerson v. Hanson, 34 Kan. 590.

The judgment made no provision for the use or occupation of the property, and, under the law, could have made no such provision. Burton had a right to insist upon the express terms of the undertaking, all of which seems to be settled beyond controversy by the decision of this court in the case of Henrie v. Buck, 39 Kan. 382. See, also, Brandt, Sur § 93; Riddel v. School District, 15 Kan. 168; Edwards v. Ellis, 27 id. 344; Ryan v. Williams, 29 id. 487; 17 Ohio 565.

We claim the court erred in dismissing the action as to Brady, in excluding the evidence in regard to title, in excluding the evidence offered, and in rendering any judgment in favor of the plaintiff below.

John H. Mahan, for defendant in error:

Burton was not in a position to urge any set-off. The alleged set-off was, if any existed, assigned to him after the suit was begun, after his first answer.

If we had omitted the Keizers, who were principals on the bond, and they had owned a set-off growing out of the same transaction, and had Mrs. Decker also been shown or alleged to be insolvent, then the case would have come within the rule of Gerson v. Hanson, 34 Kan. 590. Brady was not principal on the bond. Burton could call on the Keizers for indemnity. They claimed no set-off against plaintiff. Brady, a surety, wanted to litigate a controversy existing between himself personally and Mrs. Decker. The court declined to permit him, and it was no abuse of its discretion in making new parties.

This appeal bond is signed by the defendant in the detainer case, E. C. Keizer. There can be no doubt that he is liable under the statute, having had the benefit of his appeal. Is there a different obligation for the sureties? This court cites, in the case of Henrie v. Buck, 39 Kan. 382, the case of Lang v. Pike, 27 Ohio St. 498, as supporting the conclusion reached. In the case of Lutt v. Sterrett, 26 Kan. 561, in a very forcible manner this court repudiates the docrine of Lang v. Pike, and approves the view of Justice Johnson expressed in his dissenting opinion. In the Iowa case, cited in Henrie v. Buck, supra, as supporting the conclusion reached by this court, the undertaking did not embrace rents at all. In this case, as well as in the Buck case, the condition of the bond is, expressly, that the defendants shall pay to the plaintiff double the value of the use and occupation of the premises.

The Ohio supreme court, in Alber v. Froehlich, 39 Ohio St. 245, expressly overruled the decision in Lang v. Pike, 27 Ohio St. 498.

It is the doctrine of the best cases that, in construing a bond, the court must have recourse to the statutes in force and under which the bond is given. Field v. Shricher, 14 Iowa 121; 13 Ill. 132; 66 id. 276.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Elvina M. Decker and her husband owned a tract of land upon which they resided as a homestead, and which had been mortgaged by them to J. H. Brady. They left it for a time, and while absent Brady, the mortgagee, put E. C. Keiser and William Keiser in possession of the same. Afterward, Elvina M. Decker brought an action against the Keisers in justice's court of forcible entry and detainer, and, on April 26, 1887, she recovered judgment for the possession of the land. An appeal was taken, and an appeal bond was given which was executed by E. C. Keiser, J. H. Brady, and J. R. Burton. A trial was had of the appeal in the district court, which resulted in favor of Decker, when she at once brought an action upon the appeal bond against E. C. Keiser and J. R. Burton. About a year before that time, J. H. Brady had recovered a judgment against Elvina M. Decker and Orr Decker, her husband, for the sum of $ 1,000, and in the action upon the bond he made an application in which he was joined by Burton to be made a party defendant, and to be permitted to file an answer therein. The application was granted, and in his answer he set forth the judgment which he had recovered, and asked that it should be set off against the claim of the plaintiff. Burton filed a like answer, alleging that he signed the appeal bond at the request and for the benefit of Brady, who was the real party in interest in the action wherein it was given; and he further alleged, that Brady, who also signed the bond and had agreed to hold him harmless, had a claim against the plaintiff which was largely in excess of her claim upon the bond, and that her claim, if any she had, should be credited upon the amount for which she was indebted to Brady. The plaintiff filed a reply to each of these answers, and subsequently the court, on motion of the plaintiff, dismissed the action as to Brady, and the trial proceeded against Burton alone, who complains.

We think there was just cause to complain of this ruling. While the appeal bond is joint and several, and ordinarily an action thereon may be brought and prosecuted against any one or all of the obligors, at the option of the plaintiff, yet it was just and equitable to grant the application of Brady allowing him to be made a party defendant, and to set up the judgment which he held against plaintiff. According to the averments of the defendants, Brady was the real party...