The American Surety Company of New York v. Ashmore

• Decision Date: 06 July 1906
• Docket Number: 14,710
• Citation: 86 P. 453,74 Kan. 325
• Parties: THE AMERICAN SURETY COMPANY OF NEW YORK v. SAMUEL ASHMORE et al
• Court: Kansas Supreme Court

86 P. 453

74 Kan. 325

THE AMERICAN SURETY COMPANY OF NEW YORK v. SAMUEL ASHMORE et al

No. 14,710

Supreme Court of Kansas

July 6, 1906

Decided July, 1906.

Error from Shawnee district court; ALSTON W. DANA, judge.

STATEMENT.

THIS action was commenced by the plaintiff in error to recover on an indemnity bond executed to it by the defendants in error. It appears that there was a litigation pending in the district court of Grayson county, Texas, involving the settlement of a large estate, and that there were persons living in Kansas who claimed to be interested and who wished to intervene in that action to protect their interests. These persons were required to give a bond for costs before they were permitted to intervene. The American Surety Company of New York made this cost bond for them, but before it would make the bond it required the contemplated litigants to give an indemnity bond to protect it from loss. In compliance with this requirement the defendants executed to it the bond sued on in this action.

The intervenors were adjudged to pay certain costs. The clerk of the Grayson county court sent to the surety company a cost bill for $ 194.29, which was paid by the defendants and was supposed by them and by Mr. H. E. Valentine, the local agent of the surety company in Topeka, to include all the costs that the intervenors would be required to pay. Subsequently however, another bill for costs, amounting to $ 200, was presented to the surety company, which it was compelled to pay, and which, upon demand, the defendants refused to pay to the company, and this action was brought upon the indemnity bond to recover this item.

The nature of the action in Texas was such that the trial court was required to appoint a lawyer to represent what are there called "unknown heirs." That was done, and it was the fee of $ 200 of such appointee, taxed as costs in the case, which the surety company paid and which it now seeks to recover from defendants.

The pleadings of the defendants, in addition to a general denial alleged that when they paid to Mr. H. E. Valentine the item of $ 194.29 costs he represented that this would release them from all liability on the bond; that the bond should be canceled; that this was everything in the nature of costs chargeable to them, and that there could be no further liability on the bond; that relying upon these representations they took no steps to protect themselves against the judgment for further costs, and were not present in court when the judgment for the $ 200 was rendered against them; and that had they not been relying upon the representations, statements and promises of Mr. Valentine they would have appeared in the Texas court and defeated the recovery of the judgment. Some other matters were alleged in the answer, which are unimportant.

The jury returned a verdict for defendants Wellcome and Dunn. The plaintiff moved for a new trial, which was denied. It is to reverse this order denying its motion for a new trial that it prosecutes error.

Judgment remanded with a grant for a new trial.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Review of Order Denying a New Trial. Proceedings will lie to this court to set aside an order of the trial court denying a motion for a new trial notwithstanding no judgment has been rendered in the action.

2. PRACTICE, DISTRICT COURT--Instructions--Evidence. It is also held, that because of the absence of evidence it was error for the trial court to give the instruction quoted in the opinion.

Valentine, Godard & Valentine, for plaintiff in error.

Robert T. Herrick, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.

The defendants challenge the jurisdiction of this court to inquire into the merits of this cause on the ground that no judgment has been entered on the verdict against the plaintiff. This contention cannot be sustained. Section 5019 of the General Statutes of 1901 provides that this court may reverse or vacate an order denying a motion for a new trial. This may be done independently of the rendition of a judgment on the verdict. (Backus v. Clark, 1 Kan. 303, 83 Am. Dec. 437; Osborne, Ex'r., v. Young, 28 Kan. 769, 774; Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476.) A litigant may prosecute a proceeding in error to set aside an order refusing him a new trial although the verdict and judgment are in his favor.

The principal error assigned is the giving of the following instruction:

"If then, you believe from the evidence in this case that such an indemnity agreement was executed by these defendants to the plaintiff company; and that after the termination of the suit in the Texas court the plaintiff company took exclusive charge and control of the matter of the settlement of the costs of said litigation in the Texas court; that afterward correspondence and communications were had between plaintiff company and these defendants with reference to these costs wherein plaintiff company called upon these defendants to pay a certain judgment for costs rendered in said court against plaintiff, and that plaintiff company at the time represented to these defendants that said judgment comprised all the costs in...