Wilson v. Hite's Ex'r

• Decision Date: 27 May 1913
• Citation: 157 S.W. 41,154 Ky. 61
• Parties: WILSON v. HITE'S EX'R.
• Court: Kentucky Court of Appeals

157 S.W. 41

154 Ky. 61

WILSON v. HITE'S EX'R.

Court of Appeals of Kentucky.

May 27, 1913

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by George H. Wilson against W. W. Hite's Executor, to establish a claim against the estate. From a judgment sustaining exceptions to the claim, claimant appeals. Reversed, with directions.

O'Doherty & Yonts and Walter S. Mendel, all of Louisville, for appellant.

Humphrey Middleton & Humphrey, of Louisville, for appellee.

CARROLL J.

In September, 1906, George E. Hazzard obtained a judgment in the Meade circuit court against the Louisville & Evansville Packet Company, a corporation, for the sum of $5,000. A motion for a new trial was made in due time, but was not disposed of by the court until January, 1907, when it was overruled. Thereupon an appeal was prosecuted by the Packet Company to this court, and the judgment of the lower court affirmed. At the time of the trial in the Meade circuit court, George H. Wilson, the appellant, was connected in some manner with the Packet Company, and signed as surety a supersedeas bond executed by the Packet Company when it prosecuted its appeal from the judgment in favor of Hazzard. It appears that Wilson signed this supersedeas bond under an agreement with Hite, who was an officer and the principal owner of the Packet Company, that he would protect him against loss on account of his suretyship, and in 1908 Hite executed and delivered to Wilson the following bond of indemnity "This writing witnesseth: That whereas, George H. Wilson became, at the request of the writer, W. W. Hite, surety on a supersedeas bond in the case of Hazzard v. Louisville &amp Evansville Packet Company, pending in the Meade circuit court, in order that said case might be appealed to the Court of Appeals of Kentucky, the said W. W. Hite being the principal owner and holder of stock in the said Louisville &amp Evansville Packet Company, and whereas the said W. W. Hite agreed and promised said George H. Wilson to indemnify and hold the said Wilson entirely harmless and to reimburse the said Wilson for any and all amounts that said Wilson may be required to pay by reason of said supersedeas bond: Now, I, W. W. Hite, for and in consideration of the premises, do hereby agree and bind myself, my executors and administrators, to pay any and all sums that George H. Wilson, or his heirs, executors or administrators may have to pay by reason of said supersedeas bond, and on account of judgment rendered in said action of Hazzard v. Louisville & Evansville Packet Company, and I agree and bind myself to see that the said George H. Wilson is held entirely harmless in said matter." Upon the affirmance of the case of Hazzard v. Packet Company in this court an execution was issued on the judgment in the Meade circuit court; but as the Packet Company was then insolvent, the execution against it was returned "No property found." Thereupon Hazzard brought suit against Wilson in the Jefferson circuit court upon the supersedeas bond executed by him. While this suit was pending in the Jefferson circuit court, and in August, 1908, Hazzard assigned in writing to George W. Check all of his right, title, and interest in the Meade county judgment, and on November 28, 1908, while the suit was yet pending, Wilson executed to Check, in settlement of his liability under the judgment, his note for $6,215.15. Some time after this W. W. Hite died, and in the suit to settle his estate Wilson asserted a claim against the estate in the amount of the note he had executed to Check, and asked that he have allowed to him the amount thereof out of the estate of Hite. The executor of Hite filed exceptions to his claim, and when the matter came on for hearing the lower court sustained the exceptions, and Wilson prosecutes this appeal.

The two grounds relied on by counsel for Hite's estate why the claim asserted by Wilson should not be allowed are: (1) That the supersedeas bond was void, and Wilson incurred no liability thereunder; (2) if he was liable, he had not suffered any loss by reason of signing it, and therefore could not assert any claim for indemnity against Hite's estate by virtue of the bond of indemnity executed to him by Hite.

Of course if the supersedeas bond was void, it imposed no liability on Wilson, and therefore Wilson could have no claim against Hite's estate on the bond executed by Hite to save him harmless, but we do not agree with counsel that the supersedeas bond was void, or that Wilson did not incur any liability by signing it. The argument in support of the proposition that the bond was void is rested on the ground that it was signed by Wilson before the motion for a new trial was overruled, and before an appeal was prayed or granted from the judgment in favor of Hazzard against the Packet Company.

The circumstances surrounding the execution of the bond, and about which there is no dispute, are these: Wilson, who was in Meade county when the judgment on the verdict against the Packet Company was entered, was anxious to return to his home in Louisville, and did not want to return again to Meade county for the purpose of signing as surety the supersedeas bond that the Packet Company contemplated giving to stay the judgment, pending the appeal, if its motion for a new trial was overruled, and so he requested the clerk to permit him to then and there sign the supersedeas bond, but the clerk told him that, as the motion for a new trial had not been disposed of, and as no appeal had been prayed or granted, he could not then accept a supersedeas bond. However, upon the insistence of Wilson that he be saved if possible another trip, the clerk told him that he would prepare the bond and let him sign it, and he (the clerk) would keep it until the motion for a new trial was ruled on, and if the motion was overruled, and an appeal prayed and granted, he would then accept and approve the bond and issue an order of supersedeas thereon, staying proceedings on the judgment. Under these circumstances, the supersedeas bond was prepared and signed by the Packet Company as principal and by Wilson as surety, and left in the possession of the clerk, and in January, 1907, after the motion for a new trial had been overruled and an appeal prayed and granted, the clerk formally accepted and attested the supersedeas bond and issued the order of supersedeas.

It is conceded that the clerk had no authority to accept the supersedeas bond in October, 1906, or until after the motion for a new trial had been overruled and an appeal had been prayed and granted, and it cannot be doubted that if the supersedeas bond had been accepted and approved in October, it would have been void as a statutory bond and have imposed no liability upon the surety. Jones v. Green, 12 Bush, 127; American Accident Co. v. Reigart, 92 Ky. 142, 17 S.W. 280, 13 Ky. Law Rep. 442; Leonard v. Cowling, 121 Ky. 631, 87 S.W. 812, 89 S.W. 131, 27 Ky. Law Rep. 1059, 28 Ky. Law Rep. 145; Asher v. Cornett, 126 Ky. 569, 104 S.W. 347, 31 Ky. Law Rep. 957; Turner v. Wickliffe, 146 Ky. 776, 143 S.W. 406; Torbitt & Castleman v. Middlesboro Grocery Co., 147 Ky. 343, 144 S.W. 16.

What the liability of a surety on such a bond would be if it could be treated as a common-law obligation it is not necessary to determine, but we may observe that there are cases holding that, although a bond be of no force or effect as a statutory bond, it may be obligatory upon the surety as a common-law obligation. Spooner v. Best, 8 Ky. Law Rep. 105; Cotton v. Wolf, 14 Bush, 238; Clay v. Edwards, 84 Ky. 548, 2 S.W. 147.

As it conclusively appears that the bond was not formally accepted or approved in October or until the clerk did have authority to accept and approve it, the question arises, Did the clerk have the right to hold the bond conditionally or as an...