Stanbury v. Kerr

• Citation: 6 Colo. 28
• Court: Supreme Court of Colorado
• Decision Date: 01 December 1881
• Parties: STANBURY v. KERR.

6 Colo. 28

STANBURY v. KERR.

Supreme Court of Colorado

December, 1881

Appeal from District Court of Arapahoe County.

THIS was an action upon a bond given by Amanda J. Troutt as principal, and Kerr as surety, upon an appeal from a judgment in a justice's court in an action of unlawful detainer and also to recover the moneys received by the surety from the principal in the bond, to be paid, as was contended, to the plaintiff. Default was entered against Amanda J. Troutt. The cause was tried in the district court without the intervention of a jury, and resulted in a finding for the plaintiff, and the assessment of damages against Troutt in the sum of $375; 'and that there is justly and equitably due from defendant Kerr, together with defendant Troutt, the sum of $139, parcel of said $375.'

'Wherefore it is considered by the court, that the plaintiff Frances Stanbury do have and recover of and from defendant Amanda J. Troutt the sum of $375, with costs to be taxed, and have execution therefor. It is further ordered and adjudged by the court, that plaintiff do have and recover from defendant Kerr, together with the defendant Troutt, $139, together with costs to be taxed, and have execution therefor. And it is further ordered by the court that on satisfaction of the judgment for $375 against said defendant Troutt, the same shall operate as satisfaction of the judgment against defendant Kerr, together with said Amanda J. Troutt, and that upon the satisfaction of the judgment herein against defendant Kerr for $139 and costs the same shall operate as satisfaction of the said judgment against the said Amanda J. Troutt for said $375, to extent to which same will satisfy same.'

Defendant Kerr excepted to the foregoing findings, and each of them, and prosecuted this appeal.

Other facts are stated in the opinion.

Messrs. WELLS, SMITH and MACON, for appellant.

Mr. WM. B. MILLS, for appellee.

STONE J.

The first error assigned is to the overruling the demurrer to plaintiff's amended complaint. If it were necessary to determine the sufficiency of the complaint upon this assignment, we should probably find that since one condition of the bond declared on was unquestionably good, upon breach pleaded of this, the demurrer was rightly overruled; but aside from this, the appellant, by answering over, waived his demurrer, and cannot thereafter assign error for such overruling. Freas v. Englebrecht, 3 Col. 377; Puterbaugh, C. L. Pr. 266, and cases cited.

As the second, third, fourth, fifth and sixth assignments are not presented in the argument by counsel for appellant, they appear not to be relied upon, and will not be noticed here further than to say that upon examination we do not find them well laid.

The seventh error assigned is: 'The district court erred in sustaining plaintiff's objection to the question 'what is the amount of attorney's fees,' propounded to witness Kerr, and in not allowing the witness to answer the same.' The witness had just testified that he had received $125 from Mrs....