The First National Bank of Fort Scott v. Elliott

• Decision Date: 07 January 1899
• Docket Number: 11029
• Parties: THE FIRST NATIONAL BANK OF FORT SCOTT v. CHARLES H. ELLIOTT
• Court: Kansas Supreme Court

55 P. 880

60 Kan. 172

THE FIRST NATIONAL BANK OF FORT SCOTT v. CHARLES H. ELLIOTT

No. 11029

Supreme Court of Kansas

January 7, 1899

Decided January, 1899.

Error from Cowley district court; J. A. BURNETTE, judge.

Judgment affirmed.

J. D McCleverty, Madden & Buckman, and Keene & Gates, for plaintiff in error.

Pollock & Lafferty, for defendant in error.

OPINION

JOHNSTON, J.:

The First National Bank of Fort Scott recovered a judgment against Charles H. Elliott for $ 3205.39, and the court having refused to stay the execution of the judgment an execution was at once issued which was levied on the property of the defendant. To prevent the enforcement of the judgment until a review of the same could be had, the following stipulation was entered into and signed by the attorneys of the respective parties:

"Whereas on the 30th day of April, 1892, in said district court above named, said plaintiff recovered a judgment against said defendant for the sum of $ 3205.39 debt, and the further sum of dollars, cost of suit; and whereas, on the same day execution was issued out of said court against said defendant to collect said judgment, and said execution is now in the hands of the sheriff of said Cowley county; and whereas, said defendant is intending to file in the supreme court petition in error to review and endeavor to obtain a reversal of said judgment:

"Now therefore, for the purpose of saving cost and expense and damage by reason of further proceedings which may be taken by plaintiff to enforce said judgment, pending the determination of said matter by the supreme court, it is here stipulated by and between said parties that said defendant shall forthwith pay to said plaintiff the sum of $ 2655.37, which, if said judgment shall become final, shall be in full satisfaction of the judgment aforesaid, except for costs, but if said judgment shall be reversed by said supreme court then said sum so paid, with interest thereon at the rate of six per cent. per annum from this date, shall be refunded to said defendant, his legal representatives or assigns, on demand, and the right of each of the parties shall be the same as if this stipulation and such payment had not been made. And if such petition in error shall be filed, each of the parties agrees to use every possible effort to have the same brought to hearing by said supreme court at the earliest practicable time."

In pursuance of the stipulation the defendant immediately paid to plaintiff the sum of $ 2655.37, and thereupon the execution was returned, and proceedings in error were prosecuted in this court, which resulted in the reversal of the judgment. (Elliott v. Bank, 58 Kan. 813, 48 P 1115.) After the reversal of the judgment the defendant demanded the repayment of the money in compliance with the terms of the stipulation, but the demand was refused, when he filed a motion in the district court to require compliance with the stipulation, and the restoration of the money which had been paid thereunder. Upon the hearing of the application, proof was offered by the plaintiff to the effect that when the notes were executed by the defendant he was solvent and able to pay them, but that since the stipulation was made the defendant had incumbered and transferred the property, so that there was nothing left which was within the reach of his creditors. The motion of the defendant was allowed, and an order made that the plaintiff restore to the defendant the amount paid under the stipulation, together with interest thereon, and awarding execution for the enforcement of the order. Complaint is...