Ryan v. Scovill

Citation78 P.2d 877,147 Kan. 748
Decision Date07 May 1938
Docket Number33813.
PartiesRYAN et al. v. SCOVILL et al. [*]
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court.

Where petition discloses on its face that the cause of action is barred by limitations, the question may be raised by demurrer to the petition. Gen.St.1935, 60-307.

A gratuitous surety is entitled to have statutes and rules of law designated for the protection of such a surety, strictly construed in his favor.

Where it was necessary for beneficiaries of trust to get a court order for trustee to turn over Liberty bonds and war savings stamps, or their value, before bringing an action against the trustee and the gratuitous surety on her bond, the beneficiaries could not defeat the operation of the statute of limitations by unnecessary delay, but were required to take the preliminary action within a reasonable time, which would not, in any event, extend beyond the statutory period of 1 year after beneficiaries' attainment of majority within which the action was required to be brought. Gen.St.1935, 60-307.

When some preliminary action is an essential prerequisite to the bringing of a suit, and such action rests with the claimant he cannot defeat the operation of the statute of limitations by unnecessary delay, but must take the preliminary action within a reasonable time, which time will not, in any event extend beyond the statutory time for bringing the suit.

Appeal from District Court, Harper County; Geo. L. Hay, Judge.

Action by Dora Scovill Ryan and another against Addie Scovill trustee, and Grant Burton, the surety on her bond, to recover the value of Liberty bonds and war savings stamps which had been placed in the hands of the trustee for the plaintiffs. From an order overruling a demurrer by Grant Burton to the petition, he appeals.

Reversed, with directions to sustain the demurrer to the petition.

ALLEN, J., dissenting.

E. C. Wilcox, and J. Howard Wilcox, both of Anthony, for appellant.

Harry B. Davis, of Anthony, and Clark A. Wallace and Paul R. Wunsch, both of Kingman, for appellees.

HARVEY Justice.

This is an appeal from an order of the court overruling a demurrer to the petition in an action against the surety on the bond of a trustee. Two previous cases in this court (Ryan v. Scovill, 140 Kan. 588, 37 P.2d 1007, and Scovill v. Scovill, 144 Kan. 759, 62 P.2d 852) involve different phases of the same controversy. The allegations of the petition may be summarized as follows: Addie Scovill obtained a divorce from her husband, Fred Scovill, January 14, 1919. They then had four children--a grown married daughter, a son 16 years of age, who stayed with his father, and two minor daughters, Dora, 9 years of age, and Martha, 5, the custody of whom was given to the mother. The parties agreed upon the disposition of their property. By one provision of this agreement Liberty bonds and war savings stamps of the face value of $1,600 were to be placed in the hands of the mother, as trustee for the two minor daughters. The court approved this agreement and made an order placing the bonds and stamps in the hands of Addie Scovill, "as trustee for said minor children, which trustee shall execute a bond in the sum of Sixteen Hundred Dollars conditioned that she will faithfully perform said trust and hold said bonds subject to the further order of said court in trust for said children." Addie Scovill gave the bond, which was signed as surety by her brother-in-law, Grant Burton, and the bonds and stamps were delivered to her. On June 21, 1937, upon the application of Dora Scovill Ryan and Martha Scovill Crane, then adults and married, being the same persons referred to in the divorce decree as the two minor children, the court made an order that the trustee, Addie Scovill, turn over to them the bonds and savings stamps she was ordered to hold for their benefit. She failed to do so, and this action was brought, September 14, 1937, against her and Grant Burton, as surety on her bond. It was alleged that the defendant Addie Scovill, as trustee, had failed to comply with the order of the court, and, as plaintiffs are informed and believe, had disposed of the Liberty bonds and war savings stamps without leave of court, and had used the proceeds thereof for her own use, or the use of some person unknown to plaintiffs; that plaintiffs had made demand upon her for the bonds and stamps, or their value, and that defendant had failed and neglected to deliver them, or their value, to plaintiffs. The prayer was for judgment against the trustee and the surety on her bond for $1,600, with interest since June 21, 1937. Attached to the petition as exhibits and made parts thereof are a copy of the decree in the divorce case, a copy of the bond, and a copy of the order of June 21, 1937.

Summons was served upon each of the defendants. It appears Addie Scovill has made default. Burton filed a motion to require the petition to be made more definite by setting out the date which plaintiffs alleged Addie Scovill disposed of the bonds and stamps, the date plaintiffs, or either of them, discovered she had disposed of such bonds and stamps, and the dates on which plaintiffs became adults. This motion was overruled. The defendant Burton then demurred to the petition upon the ground, among others, that the petition did not state facts sufficient to constitute a cause of action against the defendant Burton and in favor of plaintiffs. This demurrer was heard and overruled, and the defendant Burton has appealed.

On this appeal the principal question argued is the statute of limitations, G.S. 1935, 60-307. Preliminary to that appellant contends that his motion to have the petition made specific as to the date plainti...

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4 cases
  • Pratt v. Barnard
    • United States
    • United States State Supreme Court of Kansas
    • December 9, 1944
    ...P.2d 842; Bowles v. Portelance, 145 Kan. 940, 67 P.2d 419; Herthel v. Barth, 148 Kan. 308, 81 P.2d 19, 119 A. L.R. 326, and Ryan v. Scovill, 147 Kan. 748, 78 P.2d 877. Even cases where judgments overruling demurrers have been sustained because the defect did not appear upon the face of the ......
  • Byerley v. Braucher
    • United States
    • United States State Supreme Court of Kansas
    • March 9, 1957
    ...the complaint shows on its face that the action is barred, the defense of limitation may be raised by demurrer. See Ryan v. Scovill, 147 Kan. 748, 751, 78 P.2d 877, 878, where the court said: '* * * They argue, also' that the statute of limitations should be raised by answer. However, it ha......
  • Bradley v. Hall
    • United States
    • United States State Supreme Court of Kansas
    • June 12, 1948
    ...constitute a cause of action and is therefore subject to demurrer. Kansas State Bank v. Shaible, 118 Kan. 73, 234 P. 40; Ryan v. Scovill, 147 Kan. 748, 750, 78 P.2d 877; American Glycerin Co. v. Freeburne, 157 Kan. 22, P.2d 468; Pratt v. Barnard, 159 Kan. 255, 154 P.2d 133. It should also b......
  • Mountain Iron & Supply Co. v. Jones
    • United States
    • United States State Supreme Court of Kansas
    • June 8, 1968
    ...been held that a private or gratuitous surety is a favorite of the law. (Stull v. Allen, 165 Kan. 202, 193 P.2d 207; and Ryan v. Scovill, 147 Kan. 748, 78 P.2d 877.) Here the defendants guaranteed the first mortgage note with knowledge of the fact that the mortgage was secured by the drilli......

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