Farmers' Loan & Trust Co. v. Loyd , 41 Okla. 569 ( 1914 )

The facts as above set forth have been admitted by all the parties interested, and the only question to be decided in this cause is whether or not the sureties on the appeal bond were released from liability thereunder by reason of the fact that in the trial of the case in the county court judgment was rendered in favor of the defendant Hybarger and against his codefendant Loyd; both of said defendants being the appellants in this cause.

Omitting the caption and qualification, the following is a copy of the bond in controversy:

"Know all men by these presents: That we, A. N. Loyd, and D.C. Hybarger, as principals and ___________, as sureties, are held and firmly bound unto Farmers' Loan Trust Company in the penal sum of two hundred and fifteen ($215.00) dollars, for the payment of which sum, well and truly to be made, we do bind ourselves, our heirs, executors and administrators, jointly and severally by these presents. The condition of the above obligation is such, that whereas, on the 14th day of June, 1910, the above-named Farmers' Loan Trust Company, obtained judgment against the above-named principal, before H. J. Brown, justice of the peace of Ada township in said county for the sum of ninety and no-100 dollars and interest and for costs of suit taxed at six dollars, and said principal herein intends to appeal from such judgment to the county court of said county: Now, therefore, if said principal shall prosecute said appeal to effect without unnecessary delay, and if judgment be rendered against them on appeal shall satisfy such judgment and costs, then this obligation to be void; otherwise to remain in full force and effect."

Without doubt the county court of Pontotoc county should have rendered judgment in favor of the plaintiff in error and against the sureties on said bond, on the motion for judgment against such sureties. The bond was given as security for the payment of any judgment rendered against the defendants appealing, or either of them, and, while the plaintiff in error failed to procure a judgment against the defendant Hybarger, yet it did procure a judgment against the other defendant, A. N. Loyd, who was also one of the appellants. The fact that Hybarger was released of any liability in said cause does not release the sureties on said bond from their liability on the judgment rendered against Loyd. The showing made by the defendants in error in the county court that the judgment was rendered in favor of one appellant and against the other is not sufficient to relieve the sureties of their liabilities under said bond. This question has been decided in the case ofCotton v. Alexander, 32 Kan. 339, 4 P. 259, and Moore et al.v. Mulvane, 6 Kan. App. 191, 51 P. 569.

It follows that the judgment of the trial court in overruling the motion for judgment against the sureties should be reversed, and the cause remanded, with instructions to sustain the motion and render judgment accordingly.

By the Court: It is so ordered.