Shannon v. Abrams
| Decision Date | 06 May 1916 |
| Docket Number | 19,913 |
| Citation | 98 Kan. 26,157 P. 449 |
| Parties | T. B. SHANNON, Appellee, v. ALBERT ABRAMS, Partners, etc., et al. (THE SOUTHERN SURETY COMPANY, Appellant) |
| Court | Kansas Supreme Court |
Decided, January, 1916.
Appeal from Allen district court; OSCAR FOUST, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. ACTION -- Recovery of Money -- Amount Involved -- Right of Appeal. Where an action is for the recovery of money only, the question whether the supreme court has jurisdiction to review the judgment at the instigation of the party ordered to pay it depends upon the amount, exclusive of costs, which the appellant is required to pay.
2. SAME. Under section 566 of the civil code, where the action is for the recovery of money only, the right of appellant to have his cause reviewed by the supreme court depends on the aggregate sum of money which he is required by the judgment to pay, and is not affected by the fact that the judgment is only the total of a series of judgments on separate counts, no one of which if considered independently would be for a sum large enough to confer jurisdiction for review by the supreme court.
3. SAME. Where a plaintiff has acquired title to a number of outstanding claims against a defendant and his surety, and brings a single action thereon, setting up each claim in separately stated and numbered causes of action, each one of which is for a sum of money less than $ 100, and where the plaintiff prevails in the action and separate judgments are given on each count, and an aggregate judgment is awarded in his favor for a sum of money in excess of $ 100, section 566 of the civil code gives the defendant a right of appeal to the supreme court.
4. ROAD-BUILDING CONTRACT--Indemnity Bond--Liability of Surety Company. Where contractors agree to build a road and to pay "for all labor and material and all other obligations or liabilities incurred in the doing of the said work or performance of any of the things necessary hereunder," and a surety company, for a valuable consideration, guarantees the performance of the contract, and where the contractors fail to pay the necessary and pertinent bills incurred by them in such undertaking, the surety company is liable thereon.
5. SAME--Accounts for Which Surety Company is Liable. In a road-building contract, which named the quarry where the materials for the road were to be obtained, the contractors failed to pay the necessary and pertinent accounts for dynamite, for coal consumed in the engine which operated the rock crusher, for lumber, for the rent of the quarry and for the rent of tools. Held, that the surety company was liable for the payment of these accounts under its surety obligation.
Thomas E. Wagstaff, and S. P. Miles, both of Independence, for the appellant.
Travis Morse, and G. E. Pees, both of Iola, for the appellee.
This is an appeal from a judgment rendered against the defendant as surety on the bond of a partnership which had contracted to build certain macadamized roads in Allen county.
It was also agreed that the partnership should give a bond, with sureties, to pay all indebtedness incurred for labor and materials furnished in the construction of the road, as provided in section 661 of the civil code.
The Southern Surety Company, a corporation engaged in the business of furnishing surety bonds for pay, furnished the bond, in which appropriate reference to the contract between Iola township and the contractor was made, and providing:
"Now, Therefore, if the said Abrams & Strickland shall furnish all of said material and perform said work and labor in the manner and form as agreed to, according to said contract and specifications thereto attached, and shall complete said work as is provided in said contract, and shall pay for all labor and material used or employed therein, . . . then this obligation shall be null and void, otherwise to remain in full force and effect."
The partnership contractors built the road, but failed to pay certain bills pertaining thereto. Hence this lawsuit.
The plaintiff had a balance of an account for dynamite, etc., against Abrams & Strickland, amounting to $ 48.54. This constituted plaintiff's first cause of action.
Thirteen additional causes of action were included in plaintiff's petition, for various sums ranging from $ 1.60 to $ 94.35, these being based on accounts of other persons against Abrams & Strickland, all alleged to pertain to the building of the road, and all of which had been assigned to plaintiff for the purpose of collection.
The aggregate sum of all the claims in these fourteen counts set out in plaintiff's petition was $ 398.41. The court gave judgment for plaintiff upon the fourteen causes of action separately, in amounts ranging from $ 1.60 to $ 65.55, with interest on each, and aggregating $ 388.22.
The defendant surety company's appeal is based upon the overruling of its demurrer to plaintiff's evidence.
Counsel for plaintiff challenge appellant's right to a hearing on the ground that this court has no appellate jurisdiction of controversies involving the recovery of money only unless the amount exceeds one hundred dollars, and that each of the causes of action in plaintiff's petition was inherently so distinct and independent that they can not be aggregated into one controversial sum in excess of one hundred dollars so as to clothe this court with jurisdiction.
Since this contention, if sustained, would dispose of this appeal, it should be considered first.
The appellate jurisdiction of the supreme court concerning actions for the recovery of money only is as follows:
"No appeal shall be had or taken to the supreme court in any civil action for the recovery of money unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars, except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States." (Civ. Code, § 566.)
The several causes of action, amounts claimed and the separate judgments on each count are shown by the following table:
Amount
Account assigned to
claimed
CAUSE OF ACTION.
30.63
therefrom
Bissett
21.00
8.00
1.60
70.00
8. Road work
8.00
27.20
94.35
& Elevator Co.
10.59
The Iola Brick Co.
6.50
Cement Co.
64.00
6.41
Total judgment, with interest added
on each separate judgment
Judgment on
CAUSE OF ACTION.
each count.
$47.94 and int.
29.88 and int.
therefrom
21.00 and int.
8.00 and int.
1.60 and int.
70.00 and int.
8. Road work
8.00 and int.
27.20 and int.
67.84 and int.
10.59 and int.
6.50 and int.
64.00 and int.
6.41 and int.
Total judgment, with interest added
on each separate judgment
There is a line of authorities holding that several distinct and independent claims set up in one action under separate counts, no one of which is for a sum sufficient to base an appeal, do not confer jurisdiction on an appellate court although the judgment on all the counts aggregates a sum sufficient to give jurisdiction if the amount was based on a single claim.
...
To continue reading
Request your trial
-
Franzen v. Southern Surety Co.
......A. 409; Nat. L. & B. Co. v. Title G. & S. Co., 85 Wash. 660, 149 P. 16; Multnomah Co. v. U.S. Fid. & G. Co., 92 Ore. 146, 180 P. 104; Shannon v. Abrams, 98 Kan. 26, 157 P. 449, Ann. Cas. 1918E 502;. Livermore & Co. v. G. Co., (Cal. App.) 43 Cal.App. 549, 185 P. 413; U.S. v. D. L. ......
-
Union Indem. Co. v. State
...Port Deposit Quarry Co. (D.C.) 272 F. 698, for rent of a derrick or lighter for transporting stone to the place of deposit; Shannon v. Abrams, 98 Kan. 26, 157 P. 449, Ann.Cas.1918E, 502, for dynamite, coal consumed in an operating rock crusher, lumber, and rent of tools and the quarry, wher......
-
Standard Oil Co. v. Federal Surety Co.
...a building on the land of the owner unless it in fact goes into the building and becomes a part of the realty." The case of Shannon v. Abrams, 98 Kan. 26, 157 P. 449, Ann Cas. 1918E, 502, is largely relied upon by appellant, but in that case the bond was not a statutory bond, to be construe......
-
Thompson Transport Co. v. Middlestates Const. Co.
...full compliance with the provisions of Middlestates' road construction contract with the State Highway Commission. (See, Shannon v. Abrams, 98 Kan. 26, 157 P. 449.) We hold the execution of the statutory contract bond in the instant case as required by G.S.1949, 68-410 shows an intention on......