The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

(Rewritten)
No p, 0SS.
The City of Topeka, Appellant,
John Ritchie and The Fidelity & Deposit
c0mPSSo o' si ARReliees-
The City of Topeka, Appellee,
John Richie and The Fidelity Deposit
Company. Appellant
Appeal from Shawnee County.
First Division.
AFFIRMED.
Syllabus. BY the Court. West, J.
1. Case No. Loss having become moot is
?. 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
a Judgment against the contractor for over
payments 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 not having been made party to
the action in which it was rendered. Held,
that the Judgment constitutes a cause of
facie evidence of the surety company's in
debtedness on account of the overpayments,
the contractor being execution proof.
3. While the statute of limitations as to
the contractor had run on the overpay-
ments as cause OF action, an action on
the Judgment was not barred to such
contractor.
4. 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 hts bond by as OF seh
s. Each count of the fifth amended petit
ton states cause of action in respect to
accrue more than five years before the be-
ginning Of this action and the order over
ruling the demurrer was wasp. proper es
not when this action was begun, an absent
corporation within the purview of section
20 Of the Civil Code
Z. While ordinarily the costs form part
of a judgment, in this case those which
accrued and were paid by the city within
five years before this action was begun are
not barred as to the surety, company. al
though the overpayments for which the
principal judgment was obtained were bar
red as to such surrey,
Burch J., Mason, j.. Porter. J., and Daw-
Johnston. c. ]. and Marshall. J., dissent
ing as to the fourth proposition of the
Syllabus and corresponding part of the
Attest: D.. A: VALENTINE
tSeal) Clerk Supreme Court.
No. e1,s1a.
The Farmers & Merchants State Bank, APP
pellee,
Appeal from Harper County.
AFFIRMED.
Syllabus. By the Court. West, J.
\ bank loaned a sum of money to Gus
-nmer, taking his promissory note secured
l. that of another payable to such customer
collateral. The consideration for the
olIateral note failed Later the bank ex-
tended the collateral note at the request of
the maker and payment of interest by
him. After the original date of maturity
and before the expiration of the extension
Of the collateral note the bank returned the
principal note to the borrower. marking 1t
paid on its ledger and took the col
lateral note entering it as discounted on
its record. There was nothing in the evil
dence to indicate any notice or knowledge
on the part of the bank of any infirmity in
or defense to the collateral note. Held
that as to the defendant. Beal the bank
is an innocent holder.
All the Justices concurring.
true copy.
Attest: ID. A. VALENTINE.
(Seai) Clerk Supreme Court.
No. 21.261.
c. w. Eastman. Appellee,
The Atchison, Topeka and Santa Fe Rail-
way Company. Appellant
Appeal from Harper County.
REVERSED.
Syllabus BY the Court. West, J.
1. The plaintiff alleged that the defend
ants roadma ster directed him to board a