Hulme v. Diffenbacher

• Decision Date: 10 March 1894
• Parties: HULME et al. v. DIFFENBACHER.
• Court: Kansas Supreme Court

36 P. 60

53 Kan. 181

HULME et al. v. DIFFENBACHER.

Supreme Court of Kansas

March 10, 1894

Syllabus

1. The successor in office of the judge before whom an action was tried has the power, either at chambers or sitting in court to grant an extension of time for making a case for this court in such action.

2. The action of the district court on a motion to strike out a part of a pleading may be reviewed in this court, where proceedings to reverse the final judgment are commenced in due time, notwithstanding the fact that more than one year elapsed after the ruling complained of before the filing of a petition in error, as such action is not separately reviewable, but can only be considered as an intermediate order, involving the merits of the action or a portion thereof.

3. Where a stock of merchandise is delivered by the plaintiff in certain replevin actions to three persons, who are his sureties on undertakings, given by him in the actions, to secure them against loss, and afterwards two of them are released from liability on such undertakings, the other surety cannot maintain an action against them in his own name, to which the principal is not a party, for the purpose of obtaining an accounting of the matters connected with the trust, and to compel delivery to him of the balance of the trust property and moneys in the hands of his cosureties. The principal is an indispensable party to the determination of any disputed matter relating to the trust property.

4. In such an action it is error for the court to strike from the answer averments as to the disposition that had been made by the plaintiff of a large portion of the trust property.

5. It is also error for the court to refuse to submit to the jury material questions asked by the defendant pertinent to the issues in the case.

Error from district court, Barton county; Ansel R. Clarke, Judge.

Action on a contract by C. F. Diffenbacher against G. H. Hulme and R. C. Bailey. There was judgment for plaintiff, and defendants bring error. Reversed.

G. W Nimocks and Valentine, Harkness & Godard, for plaintiffs in error.

Samuel Maher and William Osmond, for defendant in error.

OPINION

ALLEN, J.

Counsel for defendant in error challenge the sufficiency of the petition in error filed in this court, and contend that it does not allege that any judgment was rendered in the court below, fails to state who the parties were, and does not make the case made a part of the petition in error. We find the petition in error somewhat informal. The statute requires simply that it shall set forth the errors complained of, and also requires that the plaintiff in error shall file with it a transcript of the proceedings containing the final judgment sought to be reversed, or the original case made. There is no requirement that the case made shall be made a part of the petition. The petition in error does refer to it as showing the errors complained of. The assignments of error are numerous, 26 in all, and are sufficient, in our judgment, to require consideration.

The point is also made that the case made was not served within the time fixed by the judge who tried the case, and that the extension of time made by his successor in office is invalid. On the 27th day of November, 1889, the motion for a new trial was heard and overruled by the court, and the defendants were given 90 days to make and serve a case. After the term of office of the Honorable Ansel R. Clarke, the judge before whom such case was tried, had expired, his successor in office, the Honorable J. H. Bailey, made an order granting an extension of time of 30 days in which to make and serve the case. Section 549 of the Code provides: "The court or judge may, upon good cause shown, extend the time for making a case, and the time within which the case may be served. *** And in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired." It will be noticed that the first part of the section gives authority to the court or judge to grant an extension of time. The last part gives authority to the judge who tried the case to sign and settle, notwithstanding the fact that his term of office may have expired. The reason for granting this power to the individual who has ceased to be an officer is perfectly apparent. He has knowledge of what occurred at the trial, while his successor in office may know nothing about it. The authority granted by the terms of the statute is limited to the one duty of settling and signing the case, because of this necessity. Whether an order for extending the time for making and serving a case should be granted depends on circumstances arising after the trial, and having no necessary connection with it. As to these circumstances, and as to the propriety of making such an order, the new judge has substantially as good opportunities for deciding understandingly as the old. In the absence of any strong reason for holding otherwise, we think the language used by the legislature should be given its usual and ordinary meaning, and that in terms it gives the court, or the judge of the court, power to grant the extension. That means the court in session, or the judge who is, in fact, in possession of the office. This disposes of the preliminary questions, and requires a consideration of the record before us.

The most material facts of the case are as follows: A stock of merchandise claimed by one W. B. Dunaway was attached by the sheriff and two constables, under writs of attachment,— the one to the sheriff from the district court, and the other two issued by a justice of the peace. Dunaway commenced three replevin actions to recover the property, and the parties plaintiff and defendant in this case signed the replevin bonds as his sureties. By virtue of these proceedings possession of the property was obtained. Before signing said bond the parties entered into a written agreement, which is as follows: "Agreement made and entered into this 13th day of February, A.D. 1882, by and between W. B. Dunaway, party of the first part, and G. H. Hulme, R. C. Bailey, and C. F. Diffenbacher, parties of the second part, witnesseth: That whereas, the party of the first part is the owner of the entire stock of dry goods, hats, caps, boots, shoes, notions, &c., formerly owned by John Light-body; and whereas, said stock has been attached by divers persons, and said goods are now held by M. Gilmore, sheriff, J. T. Aerhart, const., Parker Corbin, const.; and whereas, said party of the first part desires to bring replevin suit for said goods: Now, that in consideration that parties of second part furnish bond for such suits, and in such suits as may be required to hold said goods, now this agreement witnesseth that, in consideration of furnishing of such bonds as aforesaid, the said goods, wares, and merchandise shall be placed in the hands of said parties of the second part, who shall have full control in connection with said party of the first part, and in his name, and run said store in the building of said party of the first part until the close of the July term of court, [district court,] A.D. 1882. It is mutually agreed and understood that no part of said stock of goods or the proceeds thereof shall be used by party of first part, but the proceeds shall be deposited with G. H. Hulme, same as if running account with bank, or at such place as the bondsmen shall agree upon. It is also agreed that, in case the bondsmen shall conclude and find that the interests of the party of first part are injured by running the store then it shall be closed up, and goods boxed up, and held by bondsmen subject to order of the court on final hearing in the three cases named. It is agreed that G. H. Hulme and R. C. Bailey shall each receive the sum of $100 per month for their services in taking care of and selling said goods up to the close of the July term of the district court of Barton county, Kansas, A.D. 1882. It is agreed that one extra clerk shall be hired in addition to the service of said G. H. Hulme and R. C. Bailey, at a salary of not exceeding $40 per month, which, in connection with all other expenses of running the store, shall be paid out of the profits on goods sold. The salaries, also, of Hulme and Bailey, shall be paid out of the profit of the sale of said goods, but said store shall not be run when the running expenses aforesaid cannot be paid out of the profits of sale of goods. All goods are to be kept insured by party of the first part. All profits on sales shall be turned over to party of first part in excess of said running expenses. It is agreed that, in event of said suits being decided in favor of party of first part, then, and in such case, all of said goods shall be turned over to said party of the first part, less the amount sold, which shall be accounted for by said bondsmen; and all proceeds of sale shall be turned over to party of first part, together with such profits as may yet be in their hands after paying the running expenses. Bondsmen are to keep a daily sales and cash book, which shall contain articles sold and amount received therefrom, and the cost of the articles so sold, and such other books as may be necessary for keeping account of said business. It is further agreed and understood that, when moneys are turned over to said G. H. Hulme, he shall receipt for same, and shall be personally liable to party of— part and other bondsmen for the money so received...