Emery v. Farmers State Bank

Citations

• 97 Kan. 231
• 155 P. 34
• 1916 Kan. LEXIS 270

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Principal and Surety — Character of Judgment against Surety — Laches. Under section 464 of the civil code, one who has signed an instrument as surety is entitled to show in an action brought thereon that he signed as surety only, and have a judgment certifying that to be his relation to the other parties to the instrument, and that the judgment so entered shall be satisfied from the property of the principal debtor, so far as it can be done, before seizing the property of the surety to satisfy the balance of the judgment, but the application ” to have his relation to the parties determined and the judgment accordingly entered should be made before the final judgment is entered.</p> <p>2. Same — Application to Have Judgment Modified — Application Denied ■ — Res Judicata. A judgment rendered without a determination whether any of those jointly and severally bound upon an obligation is a surety, may be opened up and modified so as to show who is principal and who is surety, upon any of the grounds provided in the code for opening up and modifying judgments, and where the question has ’ been submitted and determined by the court and no appeal is taken from its decision, a party is not entitled to have it reconsidered and redetermined in another action.</p> <p>3. Judgment Lien — Attaches Only to Debtor’s Interest in Land. A judgment lien does not attach to any interest greater than the judgment debtor possessed in the land when the judgment was entered, and if the judgment debtor has transferred his entire equitable estate in land to a third person before the rendition of the judgment and nothing remains in him except the naked legal title, the judgment does not become a lien upon such land.</p>