276 P. 67 | Kan. | 1929
The opinion of the court was delivered by
The Bankers Mortgage Company brought an action upon a supersedeas bond executed by the defendants, H. J. Robson, C. D. Robson and J. W. Bramblett, which had been given upon the appeal taken by the Robsons from a judgment rendered against them and in favor of the Bankers Mortgage Company. When the bond was given the Robsons procured a stay of the judgment pending the determination of the appeal. The bond was signed by the Robsons and by J. W. Bramblett as surety and it recited that they “hereby undertake to the above-named plaintiff the Bankers Mortgage Company, a corporation, in the penal sum of $2,500, that said appellants will abide the judgment if the same shall be affirmed and pay the costs.” The judgment was affirmed on July 11, 1927. (Bankers Mortgage Co. v. Robson, 123 Kan. 746, 256 Pac. 997.) This action upon the bond was commenced on April 27, 1928, in which plaintiff alleged that the judgment remains unpaid and unsatisfied and it asks for judgment against the defendants for $1,-794.90. The execution of the bond was admitted, and Bramblett answered that later proceedings had been brought by the plaintiff against the Robsons, that a receiver was appointed who had on hand as proceeds from the rental property which was involved in the controversy sufficient funds to pay the amount claimed by the plaintiff in this action, and that he should be required to pay and apply the aforesaid funds to the claim made under the supersedeas bond. It was further alleged that the Robsons had directed the plaintiff and the receiver to pay from the funds on hand the amount of the claim herein involved. There was a further allegation that he signed the supersedeas bond as surety only without compensation to accommodate the defendants, and that if any judgment is rendered in favor of plaintiff in this action he would be entitled to a judgment against the Robsons equal tó the amount that might be recovered against him. He also set forth that by reason of the nonpayment of the claim involved here, from the funds in the hands of the receiver, defendant Bramblett had been required'to employ counsel and to make several trips from his home in Wichita to Ellsworth which has resulted in damage to the defendant in the sum of $500,. for which he prayed judgment.
The court made findings of fact setting forth the original proceedings, including the-appeal and the supersedeas bond given and the disposition made of the appeal, and then stated that on April 27, 1926, another suit had been brought for accrued rental in which judgment was rendered and that the judgment had not been appealed from, but remains unpaid and unsatisfied; that on the 28th day of April, 1926, a receiver was appointed in that action by the district court of Ellsworth county to take possession of the property, collect the rentals on the apartments in the hotel and insure the furniture against loss by fire, and the receiver was required to give a bond in the sum of $5,000, conditioned that he would faithfully discharge his duties as receiver in that action.
It was also found that two other actions had been brought by the plaintiff against the Robsons for rent that had then accrued, it being payable monthly, in which judgments had been rendered in favor of plaintiff and from which no appeals' had been taken, and that these judgments had become final and remained unsatisfied. There was n finding, too, that the plaintiff held a chattel mortgage on personal property of the Robsons, and the court had directed that an order of sale be issued for the sale of that property and the proceeds thereof brought into court to abide its further order, but that no sale of the property has yet been made. The court also found that the Robsons had demanded that the receiver take from the rents and profits collected by him and from the proceeds of mortgaged furniture of the estate and apply so much as would satisfy the judgment indebtedness involved herein. It was found that the plaintiff had received the sum of $1,784.10 in cash and the use of the hotel site of the building in controversy to the value of $1,650 covering a term of eleven months, and that the net balance remaining in the hands of the receiver after deducting fees and expenses amounted to $336. The court found as a conclusion of law that plaintiff was entitled to judgment against the defendants for $2,500 with interest thereon, and that the prayer of the defendants that the claim be satisfied and discharged out of the funds received by the plaintiff and the receiver should be denied.
The liability of the principals and surety on the supersedeas bond
It appears from the finding of the court that the receiver has not . at any time had sufficient funds in his hands to satisfy the judgment