Sheahan v. United States Fidelity & Guaranty Co.

The opinion of the court was delivered by Dawson, J.: In 1911, J. B. Betts, a Topeka contractor, now deceased, entered into a contract with the Rock Island Railway Company to erect a railroad station for the latter at Waurika, Okla., and the defendant executed a surety bond conditioned that Betts would perform his contract with the railway company. The contract bound Betts to pay for all the materials used in the construction of the building. The plaintiff furnished certain materials for which he was only partly paid. Betts died, insolvent, owing plaintiff a bal [705] anee of $548.86. This action was brought to recover this sum from the defendant as surety. v Plaintiff’s petition recited these facts and alleged that he furnished Betts material of the value of $2125 and later additional materials of the value of $735.87. “Plaintiff further says that said material and labor were furnished between January 1, 1912, and August 1, 1912; that the total paid amount payable- thereon by said J. B. Betts was $2,860.87, leaving a balance due thereon August 1, 1912, of $548.86. . . . Plaintiff says that said sum of $548.86 .remains unpaid and has been due and payable ever since August 1, 1912; that said J. B. Betts died on or about the — day of April, 1913, leaving an insolvent estate. “Wherefore, said plaintiff prays judgment,” etc. Defendant then demurred to this petition. The demurrer was overruled without argument. How this came about is explained in a finding of the trial court : “The court further finds that on the hearing of said demurrer no special argument was made, but it was submitted to the court on the statement of the attorney for plaintiff that it involved the same questions that were passed upon by the court in a previous case, wherein the same bond was the basis of the action by another material man who furnished material to the contractor for the same building, and that counsel for the defendant was not present when said demurrer was submitted to the court for decision. “The demurrer to said petition was overruled by the court upon the merits of the allegation of the petition, assuming that the allegation was true, and that the sum of $548.86 was due on the contract of J. B. Betts to the plaintiff.” Defendant then filed a lengthy answer setting up various defenses, reciting the failure of plaintiff to present his claim against Betts’ estate, that defendant had no knowledge of this claim so that it might have asserted it against the estate of' Betts, laches, the statute of limitations, the Oklahoma lien laws, etc. Later, with leave of court, defendant withdrew this answer and refiled its demurrer, and from the decision of the trial court overruling it this appeal is taken. There is no reversible error here. However carelessly the allegations touching plaintiff’s account and the payment made thereon were pleaded, there was a plain allegation that a balance of $548.86 was due and unpaid, and the defendant was not entitled to j udgment on demurrer. Apparently the pleader had [706] intended first to state the amount payable, then the amount paid, and lastly the balance due. To shorten the pleading he changed the word “payable” to “paid” but failed to change the total price of the materials furnished to the sum paid thereon. The mistake of the pleader as to the amount.paid was transparent and could not have misled the defendant. After this appeal was filed and defendant’s abstract and brief were served, counsel' for the plaintiif applied to the district court for leave to amend the petition by substituting the correct figures as to the sum of Betts’ payments. This after a hearing and over defendant’s objections was allowed. This also is urged as error, and it may be so conceded. A court never loses power to correct and complete its record, but when an appeal is taken it loses all power to alter the precise situation of the parties as it existed when the judgment appealed from was rendered. (2 Cyc. 976.) The case of Pierce v. Butters, 21 Kan. 124, which was presumed to warrant this practice, falls very far short of it. But the clerical error in the petition was so obvious and unimportant that it did not need to be-amended, or it might be considered as -amended without formality. (Douglass v. McNamee, 70 Kan. 474, 78 Pac. 834.), Time was, perhaps, when trivialities like these would cause a reversal of the judgment, but the modern codes and the modern practice absolutely forbid it. (Civ. Code, § 581.) The judgment is affirmed.'