City of Topeka v. Ritchie

Citations

• 102 Kan. 384
• 170 P. 1003
• 1918 Kan. LEXIS 48

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Moot Case — Not Decided. Case No. 21,088 having become moot is not decided, and the appeal is dismissed.</p> <p>2. Sewer Contract — Indemnity Bond — Judgment against Contractor— Prima Facie Evidenpe of Surety’s Liability. A surety company gave a bond to save the city of Topeka harmless from “all liens, charges, costs and damages of every kind or nature whatsoever. . . arising out of a sewer contract. The city recovered a judgment against the contractor for overpayments made by reason of the fraudulent measurements by an engineer, and brought this action against the contractor and the bonding company, more than three years having elapsed since such overpayments, but the judgment had been kept alive. The surety was not made a party to the action in which the judgment was rendered. Held, that the judgment constitutes a cause of action against the contractor, and is prima facie evidence of the surety company’s indebtedness on account of the overpayments, the contractor being execution proof.</p> <p>3. Same — Action on Judgment — Statute of Limitations. While the statute of limitations as to the contractor had run on the overpayments as a cause of action, an action on the judgment was not barred as to such contractor.</p> <p>4. Same — Action on Surety Bond — Statute of Limitations. When the overpayments were made-, the cause of action to recover them back accrued in favor of the city against the principal and surety, and an action against the latter on its bond by reason of such overpayments became barred in five years.</p> <p>5. Same — Petition — Statute of Limitations. Each count of the fifth amended petition states a cause of action in respect to all items contained therein which did not accrue more than five years before the beginning of this action, and the order overruling the demurrer was proper.</p> <p>6. Surety Company — Right to Benefit of Statute of Limitations. The defendant surety company was not, when this action was begu