First State Bank v. Martin

Citations

• 81 Kan. 794
• 106 P. 1056
• 1910 Kan. LEXIS 432

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Redelivery Bond — Estoppel of Sureties — Possession — Res Judicata. The sureties on a xedelivery bond in replevin are estopped to claim that the defendant did not have the property in his possession, and are bound by the judgment in the replevin action.</p> <p>2. - Action Against Sureties — Execution — Demand. An action against the sureties on a redelivery bond in replevin may be maintained without the issuance of an execution on the judgment in replevin, and without a demand for the return of the property.</p> <p>3. •- — ■ Time Liability of Sureties Becomes Fixed — Exception to Sureties — Demand that Bond be Withdrawn. The plaintiff in replevin having excepted to the sureties on a redelivery bond which the sheriff had accepted and approved, the sureties • appeared before the clerk of the district court and justified, and the clerk marked the bond “approved” and filed it. Afterward, and on the same day, the defendant notified the sheriff that he did not desire to retake the property, and demanded that the bond be withdrawn, which the sheriff refused. The trial of the replevin action resulted in a judgment for the plaintiff. In an action against the sureties on the bond, held, that their liability became fixed when the bond was accepted and approved by the sheriff, and neither the fact that the plaintiff excepted.to the sureties nor the defendant’s demand that the bond be withdrawn relieved them from liability.</p>