32 Kan. 663 | Kan. | 1884
The opinion of the court was delivered by
This was an action brought by the Cooperative Association of the Patrons of Husbandry of Brown county, against Frederick W. Rohl, Henry Meibach and Mrs. ~W. J. Rohl, on a bond executed by the defendants to the plaintiff for a stay of execution pending proceedings in error in an action taken from the district court of Brown county to the supreme court of the state by Frederick W. Rohl, to reverse a judgment rendered against him and in favor of the plaintiff in this action. It is admitted by the defendants that the bond sued on was executed by them, but they claim that
It appears that on May 28, 1880, the said judgment was rendered in favor of the plaintiff and against the defendant Frederick W. Rohl; that afterward the plaintiff and Frederick W. Rohl entered into an agreement by which Rohl was not to prosecute any proceedings in error in the supreme court, and the plaintiff was not to issue any execution on said judgment prior to June 1, 1881, and Rohl was then to pay the judgment. No execution was issued prior to June 1, 1881, but Rohl, however, did not pay the judgment at the expiration of that time, and on June 30,1881, he instituted the said proceedings in error in the supreme court for a reversal of the judgment, and he, with the other two defendants, executed the aforementioned bond. On November 4, 1881, the plaintiff moved to dismiss said proceedings in error from the supreme court, for the reason that they were not instituted in such court within one year after the rendition of the judgment; and for the further reason that the defendant Frederick W. Rohl, had agreed to pay said judgment and costs; and the proceedings were dismissed by the supreme court. Afterward and on April 5, 1882, an execution was issued on said judgment, and on May 18, 1882, it was returned unsatisfied, and on June 21, 1882, the plaintiff commenced this action upon the aforesaid bond.
The defendants claim that the bond is void for the reasons, (1) that it was more than one year after the rendition of the judgment before the proceedings in error in the supreme court were instituted or the bond given, and that therefore the bond was given at a time when the defendant had no right to institute any such proceedings, and therefore that the bond was given without any consideration, and was therefore void; (2) that the plaintiff and Frederick ~W. Rohl entered into an agreement whereby Rohl was not to prosecute any proceedings in error in the supreme court, and the plaintiff was to waive execution for the
The defendants do not seem to urge any other defense to thé bond, although it would appear that they did urge another defense in the district court, and although nearly the whole of the plaintiff’s brief in this court is devoted to that defense. We shall consider only the defenses urged by the defendants in this court. We might however say that if the defendants had urged their other defense in this court the decision of this court upon that defense would be against them; and we might also say that* the decision of this court upon all their defenses must be against them. It is true the defendant, Frederick W. Eohl, had no right to institute proceedings in error in the supreme court at the time when -he did institute such proceedings in error; because, first, more than one year had elapsed after the rendition of the judgment before he instituted such proceedings in error, (Civil Code, §556, as amended in 1881; Laws of 1881, ch. 126, §2;) second,'because the said Eohl had agreed for a sufficient consideration that he would not institute any such proceedings in error; but the fact that the said Eohl had no right to institute any such proceedings in error will not render the aforesaid bond void. The plaintiff had no right to ignore the proceedings in error. • It w&s necessary for the plaintiff to appear in the supreme court and defend as to such proceedings; and in the meantime it would have been highly improper for the plaintiff- to have had an execution issued to enforce said judgment.
We think there was sufficient consideration for the bond sued on; and the bond is not void. Therefore the judgment of the court below will be reversed, and the cause remanded for further proceedings.
