Logsdon v. Phoenix Assurance Co.

362 P.2d 431, 188 Kan. 423, 1961 Kan. LEXIS 298

• Court: Supreme Court of Kansas
• Decided: June 10, 1961
• Docket: No. 42,306
• Status: Published

Opinion

The opinion of the court was delivered by

Price, J.:

This was an action for recovery of money on a contractor’s statutory bond (G. S. 1949, 60-1413 and 60-1414).

The case was commenced in a justice court in Bourbon county by the filing of a bill of particulars seeking recovery in the amount of $240 “upon an account and indebtedness . . . for which the co-defendant, Phoenix Assurance Company of New York, a corporation, is hable under said bond.” Defendant filed no answer or other pleading in the justice court. Judgment was rendered for plaintiff and defendant appealed to the district court.

Defendant also failed to file an answer or other pleading in the district court. At the hearing of the appeal evidence was introduced by plaintiff, and defendant raised no objection that it was not within the framework of the bill of particulars. At the conclusion thereof the court rendered judgment in the amount prayed for, together with interest, in the aggregate sum of $276, and further ordered payment of an attorney fee as part of the costs in the amount of $200.

Defendant filed no motion for a new trial but. has appealed from the judgment.

This matter is a companion case to that of Russell v. Phoenix Assurance Co., case No. 42,307, this day decided and reported on this page, and what is there said and held with respect to liability under the bond, allowance of an attorney fee as part of the costs, and the scope of appellate review in the absence of a motion for new trial, applies to the case before us.

The judgment is affirmed.