Jonas v. Taylor

Decision Date11 January 1932
Docket Number23249.
Citation166 Wash. 302,6 P.2d 615
PartiesJONAS v. TAYLOR et al.
CourtWashington Supreme Court

Department 1.

Appeal from Superior Court, Franklin County; Matt L. Driscoll Judge.

Action by Frank A. Jonas againt M. H. Taylor and others, and the Fidelity & Casualty Company of New York. From a judgment in favor of Fidelity & Casualty Company of New York, plaintiff appeals.

Affirmed.

Edward A. Davis, of Pasco, for appellant.

Karr &amp Gregory, of Seattle, for respondents.

MITCHELL J.

M. H Taylor was chief of police of Pasco, and as such gave an official bond, with the Fidelity & Casualty Company of New York as surety. This action was commenced during the lifetime of M. H. Taylor by Frank A. Jonas against Taylor and the surety on his official bond and against Eddie McCloud and Mrs. C. P. Smith. The amended complaint, on which the action was heard, sought to recover unliquidated damages for a tort alleged to have been committed by Taylor, McCloud, and Mrs. Smith. After the amended complaint was filed, Taylor died. The Fidelity & Casualty Company, of New York answered the amended complaint, denied liability and affirmatively pleaded the death of Taylor in abatement of the action, which latter allegation was not denied by the plaintiff. Thereupon a motion of the Fidelity & Casualty Company of New York for a judgment in its favor on the pleadings was granted, from which judgment the plaintiff has appealed.

We express no opinion as to whether there could have been any recovery in this action against the surety, had the action been heard and disposed of prior to the death of the principal, Taylor. The question in the case is, Did the death of Taylor prior to trial abate the action as to him and the surety. In 'additional authorities' and argument filed herein on behalf of the appellant subsequent to the oral argument, his counsel succinctly states his position by quoting from Valley Fruit Co. v. United States Fidelity & Guaranty Co., 161 Wash. 166, 296 P. 557, 558, as follows: 'Appellant concedes the general rule to be that when the liability is so joint and several a creditor has the undoubted right to proceed against the surety alone,' of which counsel says: 'That is exactly the theory upon which this appeal is taken and that statement quoted with apparent approval of the court announces exactly the principle which the respondent in this case does not concede and which the trial court did not recognize.'

In our opinion, however, that case and the quotation from it do not constitute authority in the present case. That was a suit against a surety arising out of contract to recover the purchase price of goods sold to the surety's principal the bond being conditioned, as emphasized in the opinion, 'for the payment when due of the purchase price of produce...

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4 cases
  • Continental Mut. Sav. Bank v. Elliott
    • United States
    • Washington Supreme Court
    • 11 Enero 1932
  • Compton v. Evans
    • United States
    • Washington Supreme Court
    • 11 Agosto 1939
    ...of adopting the appellant's theory would be to compel the lower court to entertain an action which the law says is dead. Jonas v. Taylor, 166 Wash. 302, 6 P.2d 615. the consideration of other cases, we have not felt at liberty to disregard the distinction between actions founded on tort and......
  • Jones v. Matson
    • United States
    • Washington Supreme Court
    • 26 Julio 1940
    ... ... E. T. Herman, both of Spokane, and Cheney & ... Hutcheson, of Yakima, for appellants ... Harcourt ... M. Taylor, of Yakima, for respondents ... JEFFERS, ... Justice ... This is ... an appeal by plaintiffs, T. P ... unliquidated damages does not survive. State ex rel ... Baeder v. Blake, 107 Wash. 294, 181 P. 685; Jonas v ... Taylor, 166 Wash. 302, 6 P.2d 615. We also recognized ... the rule referred to in the Blake case, supra, ir the case of ... ...
  • Johns v. Hake
    • United States
    • Washington Supreme Court
    • 16 Diciembre 1942
    ... ... truck as he did, was not negligent ... Appellants ... strongly rely upon the case of Jonas v. Taylor, 166 ... Wash. 302, 6 P.2d 615, which was a tort action against a ... sheriff and the surety upon his official bond. After the ... ...

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