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THE

Pacific Reporter.

VOLUME V.

SUPREME COURT OF KANSAS.

(32 Ka 663)

CO-OPERATIVE ASSOCIATION OF THE PATRONS OF HUSBANDRY OF THE COUNTY OF BROWN AND STATE OF KANSAS v. ROHL and others.

Filed November 28, 1884.

PRACTICE-STAY-BOND-ACTION ON-DEFENSE.

In an action on a bond executed by the defendants to the plaintiff for a stay of execution pending proceedings in error, in an action taken from the district court of Brown county to the supreme court of the state, it is not a good defense to the action to show that the proceedings in error in the supreme court were instituted more than a year after the rendition of the judgment in the district court, or to show that the parties entered into an agreement whereby the defendants were not to prosecute any proceedings in error in the supreme court, and the plaintiff was to waive execution for the period of one year, which the plaintiff did, and that, after more than one year had elapsed, the defendants did not pay the judgment, but instituted proceedings in error in the supreme court to reverse the judgment, which proceedings were afterwards, on motion of the plaintiff, dismissed by the supreme court.

Error from Brown county.

Jas. Falloon, for defendant in error.

VALENTINE, J. This was an action brought by the Co-operative Association of the Patrons of Husbandry of Brown county, Kansas, against Frederick W. Rohl, Henry Meibach, and Mrs. W. J. Rohl, on a bond executed by the defendants to the plaintiff for a stay of execution pending proceedings in error in an action taken from the district court of Brown county to the supreme court of the state, by Frederick W. Rohl, to reverse a judgment rendered against him and in favor of the plaintiff in this action. It is admitted by the defendants that the bond sued on was executed by them. But it is claimed by them that it was unauthorized; that it was executed without consideration, and is void for reasons hereafter given. The court below v. 5P,no.1--1

held it to be void, and the plaintiff brings the case to this court for review.

It appears that on May 28, 1880, the said judgment was rendered in favor of the plaintiff and against the defendant Frederick W. Rohl; that afterwards the plaintiff and Frederick W. Rohl entered into an agreement by which Rohl was not to prosecute any proceedings in error in the supreme court, and the plaintiff was not to issue any execution on said judgment prior to June 1, 1881, and Rohl was then to pay the judgment. No execution was issued prior to June 1, 1881. But Rohl, however, did not pay the judgment at the expiration of that time, and on June 30, 1881, he instituted the said proceedings in error in the supreme court for a reversal of the judgment, and he, with the other two defendants, executed the aforementioned bond. On November 4, 1881, the plaintiff moved to dismiss said proceedings in error from the supreme court, for the reason that they were not instituted in such court within one year after the rendition of the judgment, and for the further reason that the defendant Frederick W. Rohl had agreed to pay said judgment and costs, and the proceedings were dismissed by the supreme court. Afterwards, and on April 5, 1882, an execution was issued on said judgment, and on May 18, 1882, it was returned unsatisfied, and on June 21, 1882, the plaintiff commenced this action upon the aforesaid bond.

The defendants claim that the bond is void for the reasons (1) that it was more than one year after the rendition of the judgment before the proceedings in error in the supreme court were instituted or the bond given, and therefore that the bond was given at a time when the defendant had no right to institute any such proceedings, and therefore that the bond was given without any consideration, and was therefore void; (2) the plaintiff and Frederick W. Rohl entered into an agreement whereby Rohl was not to prosecute any proceedings in error in the supreme court, and the plaintiff was to waive execution for the period of one year, which time elapsed before the bond was given, and therefore the bond was given without any consideration, and was therefore void. The defendants do not seem to urge any other defense to the bond, although it would appear that they did urge another defense in the district court; and although nearly the whole of the plaintiff's brief in this court is devoted to that defense, we shall consider only the defenses urged by the defendants in this court. We might, however, say that if the defendants had urged their other defense in this court, the decision of this court. upon that defense would be against them; and we might also say that the decision of this court upon all their defenses must be against them. It is true, the defendant Frederick W. Rohl had no right to institute proceedings in error in the supreme court at the time when he did institute such proceedings in error; because,-First, more than one year had elapsed after the rendition of the judgment before he instituted such proceedings in error, (Civil Code, § 556, as amended

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