The Hutchinson Wholesale Grocer Company v. Brand

• Decision Date: 12 January 1909
• Docket Number: 15,775
• Citation: 99 P. 592,79 Kan. 340
• Parties: THE HUTCHINSON WHOLESALE GROCER COMPANY v. G. C. BRAND et al., as Partners, etc
• Court: Kansas Supreme Court

99 P. 592

79 Kan. 340

THE HUTCHINSON WHOLESALE GROCER COMPANY v. G. C. BRAND et al., as Partners, etc

No. 15,775

Supreme Court of Kansas

January 12, 1909

Decided January, 1909.

Error from Kingman district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARTIES--Surety--Action to Compel Principal to Pay. A surety on a matured debt may maintain action against the principal to compel its payment without showing any fraudulent disposition of property or other special reasons for fearing loss.

2. JUDGMENTS--Action by Surety to Compel Principal to Pay. Where such an action is brought by the surety in the same court in which the obligation on which both are liable has already been placed in judgment against the principal, a proper method for accomplishing the purpose sought is the rendition of a personal judgment for the amount involved, with a provision that when collected it shall be paid into court for the benefit of the owner of the original judgment.

3. JUDGMENTS--Immaterial Error--Surplusage. In such a case the addition of an order that if the judgment be not paid within a stated time the principal be cited to show cause why he should not be held to be in contempt of court is not ground of reversal, but may be rejected as surplusage.

F. F Prigg, and C. M. Williams, for plaintiff in error.

George L. Hay, for defendants in error.

OPINION

MASON, J.:

G. C. Brand and others sued A. J. Grice and the Hutchinson Wholesale Grocer Company in Kingman county, alleging substantially these facts: Some years earlier a replevin action was brought in that county against Grice and the grocer company. A redelivery bond was given in behalf of the defendants, signed by Brand and his associates. Final judgment was rendered against the defendants, which could have been collected on execution, but which was sold and assigned to F. W. Heryer, a son of the general manager of the company. Heryer sued on the bond in the federal court, not making the grocer company a party.

In this situation the present action was brought by the signers of the bond to compel those for whose benefit it was given to pay the judgment for which it stood as security. Upon trial the court found for the plaintiffs, and rendered judgment directing the amount of their liability on the bond to be collected from the defendants by execution and paid to the clerk of the court for the benefit of Heryer. The grocer company prosecutes error.

The only questions raised are whether the petition stated a cause of action, and whether the judgment rendered was a proper one. It is argued that a surety who has paid nothing can maintain no action unless he shows some special reason for fearing loss, as that his principal is about to make a...