Muckenthaler v. Noller

Citations

• 104 Kan. 551
• 180 P. 453
• 1919 Kan. LEXIS 312

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Cosuretyship — Right of One Surety to Enforce Contribution from Another. Where several persons, or sets of persons, enter into contracts of suretyship which are the same in their legal operation and character, though by different instruments, at different times, and without the knowledge of each other, they will be bound to mutual contribution.</p> <p>2. Same — Signers of Promissory Note — When Cosurety Entitled to Contribution. It was claimed that plaintiffs and defendants signed a note as cosureties to raise a sum for the benefit of the principal; that subsequently plaintiffs’ individual notes were given and used for the same purpose for which the original note was executed. Held, that the plaintiffs, having paid or satisfied the common obligation, are entitled to contribution, and that the situation is not altered by the fact that the sureties who are sued for contribution had no knowledge that plaintiffs’ individual notes were so used.</p> <p>3. Limitation of Actions — Defense. Statutes of limitation are not applicable to mere defenses.</p> <p>4. Same — Statute Does Not Apply to Matters of Pure Defense. Section 24 of the code of civil procedure, which declares that, “When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense,” is construed to mean that a barred right of action cannot be used as a set-off, or counterclaim, or for the purpose of obtaining affirmative relief, but not to apply to matters of pure defense.</p> <p>5. Same — Promissory Note — Attacked for Fraud — Defense Not Barred. Regardless of any statute of limitations, the instrument or contract upon which an action or right is based may be attacked for fraud after the lapse of the prescribed time, 'provided the party making the attack does so merely for defense, and seeks no affirmative relief thereby.</p> <p>6. Same. In an action on a promissory note, where defendants file a verifi