65 P. 223 | Kan. | 1901
The opinion of the court was delivered by
It is doubtless true that the court below dismissed the original action because the plaintiffs therein did not prosecute it. Such is the allegation of the petition, and upon demurrer it must be taken as true. As to plaintiff’s right to sue on the bond as assignee, reference is made to Norton v. Lawrence, 39 Kan. 458, 18 Pac. 526. The parties signing the replevin bond bound themselves to prosecute the action to final judgment, and they could not dismiss it (Bank v. Morse, 60 Kan. 530, 57 Pac. 115) or suffer it to be dismissed for want of prosecution without incurring a breach of the conditions of their undertaking. As a general rule, an unqualified agreement to perform a certain act. necessarily includes the performance of those things which will enable or permit one to fulfil such obligation. Probably there are exceptions to the rule, but the matter we are about to refer to does not constitute one of them..
The obligation of the signers of a replevin undertaking does not cease until the action in which it is given is brought to final judgment, and, if it be determined against the plaintiff in the suit, until such judgment is performed. The contention of the counsel for defendants in error is that because they recovered judgment in the district court they were under no obligation to take measures to revive the action after the decease of Fisher. They say :
‘ ‘ It was certainly not the duty of Enderton to have the action revived in his name, as he had no interest in obtaining a reversal of the judgment below, which*202 then had been in his favor. He was under no obligation to prosecute an appeal for the benefit of his adversary, and it was not his fault if the order remanding it was void.”
The frankness of counsel is commendable ; they resort to no specious artifice to conceal their true position. Viewed cursorily their argument contains a measure of plausibility, but it is not sound. As before stated, their clients had contracted to prosecute their action to a final determination. How could they fulfil that covenant without keeping the suit pending and ready to be proceeded with, if this court should reverse the judgment of the district court? Besides, the order of this court remanding the cause for further proceedings was not void. It was a step regularly taken in the case, and one that defendants in error were required to anticipate and prepare for as a contingency to be encountered therein. True, the latter were not bound to prosecute an appeal from a judgment in their favor, but they were bound to take notice that their adversary was doing so, and if they assumed that they would prevail against their opponent in that proceeding they did so at their peril. They were culpably negligent in not instituting and perfecting such measures for a revivor as would have enabled them to proceed without delay to fulfil their covenants if the result of the proceedings pending in this court should make further affirmative action on their part necessary, and they cannot now be heard to plead their own laches and wrong to avoid their contractual liability.
It is no answer to say that the plaintiff in error might have set the machinery of the law in motion and procured an order of revisor. That party, or the sheriff representing it, did not begin the litigation, and, as it sought no affirmative relief, its prov
Because it was the duty of defendants in error to cause this action to be revived, having failed in the performance of that duty they are estopped to plead such failure as a defense. The case should proceed as though an order of revivor had been duly entered in the name of Jennie Fisher, as executrix.
The judgment is reversed, and the case remanded with directions to the court below to overrule the demurrers of defendants.
