Henrie v. Buck

• Decision Date: 04 May 1888
• Citation: 39 Kan. 381,18 P. 228
• Parties: JAMES N. HENRIE et al. v. H. B. BUCK
• Court: Kansas Supreme Court

18 P. 228

39 Kan. 381

JAMES N. HENRIE et al. v. H. B. BUCK

Supreme Court of Kansas

May 4, 1888

Error from Republic District Court.

ACTION by Buck against Henrie and another, to recover on an undertaking given upon an appeal from a judgment rendered by a justice of the peace. Judgment for plaintiff, at the October term, 1886. The defendants bring the case to this court. The opinion contains a sufficient statement of the facts.

Judgment reversed and cause remanded.

Sheafor & Botsford, and W. T. Dillon, for plaintiffs in error.

L. J Crans, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action on an undertaking given upon an appeal from a judgment of a justice of the peace, rendered in an action for forcible entry and detention. The following is a copy of the undertaking:

"Whereas the defendant Collin Schrock intends to and has appealed from a judgment rendered against him in favor of the plaintiff H. B. Buck, on the 21st day of May, 1885, by said John Richardson, justice of the peace of said township and county: Now we, the undersigned, residents of said county, bind ourselves to the said plaintiff, H. B. Buck, in the sum of eight hundred dollars, that said defendant will prosecute this appeal to effect and without unnecessary delay, and shall not commit or suffer waste to be committed on the premises in controversy; and if, upon a further trial of the case, judgment shall be rendered against him, he shall pay double the value of the use and occupation of said property pursuant to the judgment, and all damages and costs that may be awarded against him.

JAMES N. HENRIE.

WILLIAM K. DIXON."

The appeal was pending in the district court on February 4, 1886, when the plaintiff therein moved to dismiss the same for the reason that there was no undertaking on appeal such as is required by law, and the court made an alternative order allowing the motion, unless a good and sufficient appeal bond was given on or before six o'clock that evening, and if that was done the motion was to be overruled. In pursuance of that order, the undertaking on which this action was brought was given. The appeal was tried on February 6, 1886, and resulted again in favor of Buck, and on March 12, 1886, the possession of the property was restored to him, but the costs were not paid, and no property of appellant was found out of which to make the costs, and on March 13, 1886, the present action was brought. The parties who executed the undertaking were not parties to the action in which it was given, and were not liable for waste, rents, or costs, except as they were made so by the undertaking which they signed. At the trial of this action, the court submitted to the jury as the only questions for their determination:

"First: What was the value of the rental of the premises mentioned in the plaintiff's petition from the 27th day of May, 1885, to the 12th day of March, 1886?

"Second: Was there any waste committed or suffered to be committed by the defendants Collin Schrock, Abram Myers, or A. T. Logue upon the premises referred to in the first question, within the dates specified in that question?"

The answer to the first question was, $ 200; and to the second, that no waste was committed. The court refused to instruct or allow the return of a general verdict, but entered judgment upon the special findings against the sureties on the undertaking for the sum of $ 581.80, which amount was made up by doubling the value of the use and occupation of the premises as found by the, jury, and adding thereto $ 181.80 found by the court to be due as costs in the action in which the undertaking was given.

Several grounds for the reversal of the judgment are insisted upon one of which is that the court erred in holding that the plaintiffs in error were liable for the use and occupation of the premises which were in dispute in the action for forcible entry and detention, for the reason that the contingency written in the obligation on which they were to become liable had not transpired, and that at least no liability could arise thereon for the rental of the premises prior to the time when the undertaking was executed. The condition of the undertaking is prospective in form, and nothing in the language employed relates back or indicates that it was the intention to extend the liability of the obligors so as to cover all the time from the taking of...