Winton v. Myers

Opinion of the court by Burford, C. J.: The plaintiffs in error urge but two objections to tlie rulings of tbe trial court: First, tbat tbe petition of tbe plaintiff does not aver facts sufficient to constitute a cause of action; second, that tbe demurrer ■of tbe defendants to plaintiff’s evidence should have been sustained. We fail to discover any merit in tbe first contention. It is urged tbat there is no allegation of damages or a breach of tbe condition of the bond. The bond sued on was a statutory bond, and authorized by section 229 of tbe Code of Civil Procedure. Tbe condition of tbe bond was “tbat the defendants shall perform the judgment of tlie court in said action.” Tbe failure to pay tbe judgment was tbe breach of the conditions of tbe bond, and the measure of damages was prima facie the amount of the judgment, with interest, and the costs taxed in said cause. Tbe petition alleged tbat the judgment was rendered, stated the amount of the judgment and costs, and specifically averred “that tbe said judgment is now valid, subsisting, and unpaid, in whole or in part.” These allegations were sufficient to withstand tbe demurrer and to support tbe judgment 'rendered. It is contended that the demurrer to the evidence should have been sustained, because no testimony was introduced as to any breach of the conditions of the bond ■or that the judgment was unpaid. The evidence showed tbat a judgment had been rendered, and entered of record; also that an execution bad been issued, and returned nu lla dona. When it was once shown that a valid *424 judgment had been obtained, and entered of record, in the absence of any showing to the contrary, the same condition of things will be presumed to exist at thie time of the trial. A state of facts once shown to exist is presumed to continue. Payment is always a matter of defense, and, as-a general rule, must be specifically pleaded and proven by him who claims payment. The burden of showing payment was on the-defendants, and no error w-as committed in overruling the demurrer to the evidence. (Lerche v. Brasher, 104, N. Y. 157, 10 N. E. 58; Lovelock v. Gregg, [Colo. Sup.] 23 Pac. 86.) There is a further objection mad)e that plaintiff failed to attach a copy of the undertaking to the petition. This objection was not made before trial. The demurrer to-the petition, or objection to introduction of any testimony on the grounds that the petition failed to state a cause of' action, would not present this question. The objection should have been made by motion to require the plaintiff to attach a copy of the bond to the petition. (Burnes v. Simpson, 9 Kan. 658; Andrews v. Alcorn, 13 Kan. 351) We find no judicial error in the record. The judgment of the probate court of Kay county is affirmed, at the-costs of plaintiffs in error All of the Justices concurring.