Western Surety Co. v. Kelley

• Decision Date: 06 June 1911
• Citation: 131 N.W. 808,27 S.D. 465
• Parties: WESTERN SURETY CO. v. KELLEY et al.
• Court: South Dakota Supreme Court

131 N.W. 808

27 S.D. 465

WESTERN SURETY CO. v. KELLEY et al.

Supreme Court of South Dakota

June 6, 1911

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by the Western Surety Company against Myrtle Kelley and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Affirmed.

Preston & Wagner, for appellants.

Joe Kirby, for respondent.

SMITH P. J.

This action was tried to the court without a jury, and judgment entered upon findings of fact and conclusions of law. The assignments of error relate to conclusions of law upon facts which are undisputed.

Briefly stated, the facts are as follows:

On November 6, 1906, an information was filed by the state's attorney in the circuit court of Davison county, charging one Myrtle Kelley with the crime of keeping a house of ill fame upon which charge she was arrested and admitted to bail in the sum of $1,000. On the 9th day of February, 1907, the defendant, being then in custody upon said charge, made application to the plaintiff company to become surety upon her bail bond. At the same time there was presented to the plaintiff company a bond of indemnity signed by the defendants in this action, five in number, each bondsman binding himself severally in the sum of $200 to indemnify the plaintiff company "if the said Western Surety Company is compelled or becomes liable under said bail bond by the default of said Myrtle Kelley to appear at said circuit court of Davison county and answer the charges made against her and all orders of the said circuit court in all things in said action." Thereafter, on the 21st day of February, 1907 to induce the plaintiff surety company to become surety on her bail bond, defendants in this action executed and delivered to plaintiff a further agreement in writing whereby the indemnity bond therefore executed by them was amended by striking out the limitation of a several liability in the sum of $200 each, and making the bondsmen jointly and severally liable in the full sum of $1,000, "as though no such provision was contained in the bond." Thereafter, on the 22d day of February, 1907, the plaintiff surety company, relying upon the bond of indemnity executed and delivered an undertaking or bail bond with Myrtle Kelley as principal in the sum of $1,000 conditioned for her appearance before the circuit court which undertaking was duly approved and filed on February 22, 1907, and thereupon said Myrtle Kelley was released from custody. Thereafter, for reasons not material upon this appeal, the cause was continued to the April, 1908, term of court, at which time the accused failed to appear, and the undertaking of bail was declared forfeited. On May 14, 1909, an action was commenced in the circuit court of Davison county against Myrtle Kelley and the Western Surety Company to recover the sum of $1,000 the amount of the forfeited undertaking, and on May 27, 1909, plaintiff surety company served on defendants in this action as sureties on the indemnity bond notice of the beginning of the action on the forfeited bail bond, and that "the Western Surety Company desires you to take charge of the defense in this action and plead thereto any defense you may have which could be interposed by the Western Surety Company," and, further, "that if you fail so to do successfully, and judgment is rendered against the Western Surety Company, the Western Surety Company will require you jointly and severally to reimburse it for the amount of such judgment and any and all costs which it may incur in the premises," and, further, that "the said Western Surety Company will furnish any assistance in its power to you in the defense of said action, and will co-operate with you in the defense thereof." The defendants in this action neglected and refused to defend the action on the undertaking, and allowed judgment to be taken therein against the surety company, in settlement of which judgment the company on October 12, 1909, paid the sum of $1,035.05, and began this action against these defendants on the indemnity bond. Defendants, appellants here, urge two lines of defense: First, that the indemnity bond was without consideration because at the time it was executed on February 9, 1908, no undertaking had been given by the Western Surety Company, and that an indemnity bond against liability on an undertaking given in a criminal action is against public policy...