29 Kan. 487 | Kan. | 1883
This action was originally commenced on June 24, 1875, in the district court of Leavenworth county, by H. T. Green, as administrator of the estate of Theodore Jones, deceased, against Jacob McMurtry, to recover $1,200, claimed to have been due from McMurtry to Jones at the time of the death of Jones. Judgment was rendered in the district court in favor of McMurtry and against Green, and Green took the case to the supreme court on petition in error. While the case was pending in the supreme court McMurtry died, and the action was revived against James E. Williams, as administrator of McMurtry’s estate. The supreme court reversed the judgment of the district court, and remanded the case to that court for a new trial. (Green v. Williams, 21 Kas. 64 — 73.) After the return of the case to the district court, that court ordered the plaintiff to give security for costs, which the plaintiff did by causing the execution and the filing of the following bond, to wit:
“Henry T. Green, as Administrator of the Estate of Theodore Jones, deceased, Plaintiff, v. James E. Williams, as Administrator of the Estate of Jacob McMurtry, deceased, Defendant: — I, Matthew Ryan, a resident of Leavenworth county, in Kansas, hereby bind and obligate myself that the plaintiff above named shall pay all costs that may accrue in the above-entitled action, in case he shall be adjudged to pay the same; and I further bind and obligate myself that he will pay all costs made by him in said action, in case judgment be obtained against the defendant herein, and the same cannot be'collected from the defendant, as ordered by the court herein.
“Given under my hand at Leavenworth city, Kansas, this 12th day of February, 1879. Matthew Ryan.”
On September 29,1879, Green resigned as administrator of the estate of Theodore Jones, deceased, and Robert Adams was duly appointed and qualified as his successor; and on October 28, 1879, the action was revived in the name of Robert Adams, as administrator of the estate of Theodore
“That said Matthew Ryan has been duly and legally served with said notice of said motion, and that the costs herein for which said Matthew Ryan is liable as surety amount to the sum of four hundred and thirty-six dollars and fifty-five cents ($436.55); and the court finds that said sum of $436.55 is composed of the following unpaid costs as follows, to wit: From commencement of action, June 24, 1875, to September 4, 1876, on which last date the death of the defendant was suggested and the action revived in the name of James E. Williams, administrator, &c., as aforesaid, the costs amounted to the sum of $64.85, unpaid; from September 4, 1876, to Sept. 29, 1879, on which last-named date H. T. Green resigned as administrator and Robert Adams applied to be substituted as party plaintiff herein, and was on the 28th day of October, 1879, substituted as party plaintiff herein, the costs from said 4th day of September, 1876; to said 29th day of September, 1879, remaining unpaid, amounted to the sum of $252.55; from September 29, 1879, to and including the 2d day of May, 1882, on which last-named date the notice and motion of said defendant for judgment against said Matthew Ryan as surety was of record, the costs amount to the sum of $119.15, unpaid, making in all said sum of $436.55.
“To all of which findings and decision of the court said Matthew Ryan excepted, and presented and filed his motion for a new trial hereof.”
The court below overruled Ryan’s motion for a new trial,
Did the court below err in sustaining the motion of the defendant Williams for judgment against the surety Ryan, and in rendering such judgment? This question depends wholly and entirely upon the interpretation that may be given to the surety bond executed by Ryan; and it depends wholly and entirely upon the true signification and meaning of that portion of such bond which reads as follows: “I, Matthew Ryan, . . . hereby bind and obligate myself that the plaintiff above named shall pay all costs that may accrue in the above-entitled action, in case he shall be adjudged to pay the same.” The words “plaintiff above named,” and “he,” as used in the foregoing extract, undoubtedly mean “Henry T. Green, as administrator of the estate of Theodore Jones, deceased;” for Henry T. Green, as such administrator, and as described by these words, was the plaintiff in the action, and the only plaintiff, and the title to the bond itself so shows. Therefore, if we fill out the above-quoted extract as it should be read, it will read as follows :
“I, Matthew Ryan, . . . hereby bind and obligate myself that the plaintiff above named [Henry T. Green, as administrator of the estate of Theodore Jones, deceased ] shall pay all costs that may accrue in the above-entitled action, in case he [Henry T. Green, as administrator of the estate of Theodore Jones, deceased] shall be adjudged to pay the same.”
The plaintiff in error, Ryan, claimed in the court below, and now claims, that he is liable on said bond to pay only such a judgment as might be rendered for costs strictly and literally against “Henry T..Green, as administrator of the estate of Theodore Jones, deceased,” and that he is not liable for the payment of the present judgment, which was not so rendered, but was rendered in fact against Robert Adams, as adminis
On the other hand, the defendant in error claims that this litigation is really a contest between two estates — the estate of Theodore Jones on the one side, and the estate of Jacob McMurtry on the other side; and that the administrators of such estates are mere figure-heads in the litigation. He claims that no personal judgment could be rendered in favor of or against either of them; but that any judgment rendered in favor of or against either of them must be a judgment in favor of and against them respectively in their representative capacities only. He says that these administrators have no personal interest in the contest; that whatever they may do, or whatever judgment may be rendered in the case either for them or against them, the loss or gain will not be a loss or gain to either of them personally, but will be a loss or gain only to the estate which they respectively represent. He says that one administrator may resign and that another administrator for the same estate may be appointed in his place, and the contest will go on just the same as though no change had been made with respect to administrators. Hence he claims that whenever security for costs is given by the administrator of an estate, the security must be given so as to bind the estate and not merely to bind the administrator, though perhaps in form it may bind only the administrator; and that it will make no difference who may afterward become the administrator for such estate, or how many changes may be made with respect to administrators, for in any case
We think the judgment in the present case is erroneous. Many courts hold that a surety on a bond is liable only within the strict letter of his bond; and no court holds that a surety is liable beyond the reasonable implications of his bond. The bond in all cases must speak for itself; and sureties may always stand upon its literal terms, or upon its literal terms and its reasonable implications; and if these do not make the surety liable, nothing else can. No far-fetched equities nor overstrained constructions are allowable as against sureties. Their bond expresses their contract, sets forth their obligation, ánd defines their liability; and we are not at liberty to resort to extraneous matters to enlarge their liability. In the present case Ryan did not bind himself to pay any costs except such as might be included in a judgment rendered against Henry T. Green as administrator of the estate of Theodore Jones, deceased. If it be said that the bond
■ We would refer to the authorities cited by counsel. See also the case of Riddel v. School District, 15 Kas. 168, 170, where it was held in favor of a surety on a school-district officer’s bond, that the surety was not liable. This is a very strong case against the liability of sureties on bonds, except where they are unmistakably made liable by the terms of their bonds.
The judgment and order of the court below, holding Matthew Ryan liable on the bond in controversy, will be reversed.