Handy v. Company

Decision Date07 May 1898
Docket Number10668
PartiesJEROME B. HANDY v. THE BURRTON LAND AND TOWN COMPANY et al
CourtKansas Supreme Court

Decided January, 1898.

Error from Ellsworth District Court. W. G. Eastland, Judge.

Judgment reversed and cause remanded.

Ira E Llyod, for plaintiff in error.

J. W Rose and John W. Roberts, for defendants in error.

OPINION

DOSTER C. J.

At the January term of the District Court of Ellsworth County, for the year 1890, the plaintiff in error, Jerome B. Handy, recovered a judgment for money, and for the foreclosure of a real-estate mortgage, against the defendant in error, The Burrton Land and Town Company. In the same action and at the same term, The Ellsworth Loan and Investment Company recovered upon its answer and cross-petition a like judgment against the same defendant. The Burrton Land and Town in stituted proceedings in error to reverse these judgments, and, as allowed by the statute, gave a supersedeas bond for stay of execution, signed by itself and the other defendants in error in this proceeding. The condition of this bond was, that, in case the judgments were not reversed, the sureties would pay such deficiency as remained after the sale of the mortgaged real estate. The judgments were not reversed. The deficiency arising after the sale of the real estate was not paid, and action was thereupon instituted upon the supersedeas bond. This action was tried to the court without a jury, and judgment was rendered in favor of the defendants. The reason for the rendition of this judgment was the misrecital of a date in the bond. The effect of this misrecital occasioned a variance between the pleadings and proof. As before stated, the judgments were recovered at the January term, 1890, but the bond incorrectly recited the term as November, 1890. The petition did not pray for a reformation of the bond, and the sole question is, Can the sureties be held, or should they be discharged on account of the misrecital of dates?

It appeared in testimony at the trial that at the time of the execution of the bond the sureties were stockholders in the Burrton Land and Town Company. The sureties all testified that they remembered the circumstance of the recovery of the judgments against the Company; that they remembered the signing of the bond sued upon; that it was the only one signed by them in the action in question, and that it was signed by them to stay further proceedings in the case. The testimony further showed that, other than the one in question, no case entitled Jerome B. Handy v. The Burrton Land and Town Company had ever been brought or tried in the District Court of Ellsworth County. In short, the identity of the bond sued upon as the one intended to be given by the sureties for the purpose of staying execution upon the judgments mentioned, was conclusively established. Under such circumstances, can the misrecital in the bond of the date of the judgments intended to be stayed by it avail the sureties as a defense? We are clearly of the opinion that it cannot. The bond correctly recited the amount of the judgments, together with the title of the case, the court in which rendered, and the institution of the proceedings in error; and when supplemented by the above-mentioned extrinsic evidence establishing the identity of the bond, it becomes manifest that the misrecital of dates was a mere clerical error, of which the obligors on the bond were themselves aware and which has in no wise prejudiced their substantial rights. Section 133 of the Civil Code declares:

"No variance between the allegations in a pleading and the proof is to be deemed material unless it have actually misled the adverse party to his prejudice, in maintaining his action or...

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6 cases
  • Baldwin v. Anderson, 5653
    • United States
    • Idaho Supreme Court
    • May 2, 1931
    ...extent of the meaning of the language so chosen. (Shannon v. Dodge, supra; Moffat v. Greenwalt, 90 Cal. 368, 27 P. 296; Handy v. Burrton Land Co., 59 Kan. 395, 53 P. 67; Rue v. Anderson, 160 Mo.App. 347, 142 S.W. 358; American Surety Co. v. Pangburn, 182 Ind. 116, Ann. Cas. 1916E, 1126, 105......
  • Great Northern Express Company v. Gulbro
    • United States
    • North Dakota Supreme Court
    • November 15, 1917
    ... ... Sternheim, 57 ... Ill.App. 126; Daggitt v. Mensch, 141 Ill. 395, 31 ... N.E. 153; Wile v. Koch, 54 Ohio St. 608, 44 N.E ... 236; Pray v. Wasdell, 146 Mass. 324, 16 N.E. 266; ... Stillings v. Porter, 22 Kan. 17; Landa v ... Heermann, 85 Tex. 1, 19 S.W. 885; Handy v. Burrton ... Land & Town Co., 59 Kan. 395, 53 P. 67; Cooke v ... Crawford, 1 Tex. 9, 46 Am. Dec. 93; Martin v ... Davis, 2 Colo. 313; Lynch v. Lynch, 150 Pa ... 336, 24 A. 625; Johnson v. Noonan, 16 Wis. 688; ... Riggs v. Bank of State, 11 Ala. 160; Merrick v ... Farwell, 33 Me. 253; ... ...
  • General Securities Company v. Hindes
    • United States
    • Kansas Supreme Court
    • July 11, 1925
    ...cases collected in 12 A. L. R. 721; Henrie v. Buck, 39 Kan. 381, 18 P. 228; Washer v. Campbell, 40 Kan. 398, 19 P. 858; Handy v. Land Co., 59 Kan. 395, 53 P. 67; v. Emmons, 61 Kan. 217, 59 P. 338; Bank v. Brecheisen, 65 Kan. 807, 70 P. 895.) The judgment of the court below will be reversed ......
  • Western Union Telegraph Company v. Throop
    • United States
    • Indiana Appellate Court
    • February 17, 1921
    ... ... Court, for the sum of $ 100 and costs, and since, under the ... facts shown, no such judgment existed except the one bearing ... date of January 16, 1919, the conclusion would be ... irresistible that such bond was executed as an appeal bond in ... this cause. In the case of Handy v. Burrton ... Land, etc., Co. (1898), 59 Kan. 395, 53 P. 67, the court ... had under consideration [75 Ind.App. 75] the effect of an ... erroneous recital of the date of two judgments in an appeal ... bond, and, in holding that the obligee therein could not be ... prejudiced by such recital, ... ...
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