Fidelity & Deposit Co. of Maryland v. Mullins

• Decision Date: 29 January 1934
• Parties: FIDELITY & DEPOSIT COMPANY, DEFENDANT IN ERROR, v. MRS. WILLIAM C. MULLINS, PLAINTIFF IN ERROR
• Court: Kansas Court of Appeals

67 S.W.2d 541

228 Mo.App. 454

FIDELITY & DEPOSIT COMPANY, DEFENDANT IN ERROR, v. MRS. WILLIAM C. MULLINS, PLAINTIFF IN ERROR

Court of Appeals of Missouri, Kansas City

January 29, 1934

Error to Circuit Court of Jackson County.--Hon. Brown Harris Judge.

Judgment reversed.

David R. Derge, Richard P. Brous and Winger, Reeder, Barker & Hazard for defendant in error.

Harry A. Hall for plaintiff in error.

OPINION

BLAND J.

This is a suit on an appeal bond. The cause was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiff in the sum of $ 346.06. The defendant Mrs. Wm. C. Mullins, has brought the case here by writ of error.

In mentioning herein the "plaintiff" and the "defendant" we refer to the parties as they were designated in the court below and not in the sense of plaintiff in error and defendant in error.

The case was tried upon an agreed statement of facts which shows that one Alexander Gray brought a suit before a justice of the peace in Kaw Township, Jackson County, against the W. C. Mullins Construction Company and Jennie E. Thompson. Gray obtained a judgment against said parties and the W. C. Mullins Construction Company appealed the case to the circuit court. There is a dispute as to whether Jennie E. Thompson appealed. If she did the judgment in the circuit court did not dispose of all of the parties as none was there rendered either for or against her. For the purposes of this case we may assume that she did not appeal, as contended by the plaintiff.

The facts show that the W. C. Mullins Construction Company executed an appeal bond with the plaintiff as surety. When the cause came up in the circuit court, it was tried before a jury, resulting in a verdict in favor of plaintiff in the sum of $ 288.88 and, under the provisions of Section 2362, Revised Statutes 1929, the court rendered judgment in that amount against the W. C. Mullins Construction Company and the plaintiff herein as surety on its bond. Thereafter, an appeal was taken from the judgment to this court and the W. C. Mullins Construction Company gave an appeal bond upon which Mrs. Wm. C. Mullins, defendant herein, was one of the sureties. The appeal was afterwards dismissed and plaintiff, after paying the amount of the judgment, brought this suit against Mrs. Wm. C. Mullins as surety on the appeal bond given in the circuit court. We, therefore, have the question presented as to the rights, as between themselves, of successive sets of sureties on different bonds given in a judicial proceeding.

There is a dispute between the parties as to whether the plaintiff herein, against whom judgment in the circuit court was rendered along with the W. C. Mullins Construction Company, appealed to this court in the other suit. However, the agreed statement of facts recites that the appeal was taken "by the defendants therein." The disposition of the present case, as we see it, depends upon whether the plaintiff herein joined in appealing to this court in the former case. There is no dispute as to the law applicable to the situation. It was properly enunciated in the case of Hartwell v. Smith, 15 Ohio St. 200, 204, 205, as follows:

"In regard to this question of superiority of equities, which is liable to arise in the case of prior and subsequent bonds, executed by different sureties, for distinct purposes, and both constituting securities in the hands of the creditor for the same debt, it is well settled that if the interposition of the second surety, is for the benefit of the principal, alone, without the sanction or assent of the first surety, who may be prejudiced thereby; as when the effect of the second bond is to prevent the enforement of present payment from the principal, and thus to prolong the responsibility of the first surety; in such a case the equity of the first surety is superior, and he is entitled to be subrogated to the rights of the creditor as against the second. . . .

"But the rule is otherwise, where the surety in the second bond becomes bound for a purpose in which both the principal and the prior surety concur, in which they both have an interest, and where the assent of the prior surety is expressly given, or is clearly to be inferred from the circumstances of the case. In such a case the last surety has a right to look for his indemnity, not only to his principal, but to such fixed securities as has been given to the creditor, when his engagement was entered into, and on the faith of which he may be presumed to have incurred his obligation."

See also, Fid. & Dep. Co. of Md. v. Bowen, 123 Iowa 356, 98 N.W. 897; Southwestern S. Co. v....