Durham v. Moore, 48 Kan. 135 (Kan.)

Opinion by

Green, C.:

George W. Moore brought an action against Thomas E. Durham in the district court of J.ohnson county to foreclose a mortgage given to secure two promissory notes. Service was made upon the defendant by publication. At the September term of the court, 1888, the service by publication was approved by the court, and a finding was made of the amount due, and the mortgaged premises were ordered sold in six months, under a special execution. The mortgaged premises were sold on the 22d day of April, 1889, and the sale was afterward confirmed by the court. On the 18th day of July, 1889, Thomas E. Durham made a special appearance and filed a motion to set aside the sale and the order confirming the same, for the reason that the court had no jurisdiction either of the person of the defendant or the subject-matter of the action. Four days thereafter the plaintiff filed a motion asking for a nunc pro tunc order, correcting the judgment so as to show that the land was to be sold without appraisement. On August 30th following Durham appeared specially, and moved to strike the last motion from the files because the court had no jurisdiction to hear and determine the matter. The court sustained the motion of Durham to set aside the sale and the order confirming the

same, and also overruled the motion of Durham to strike the motion of Moore to correct the record from the files. . This motion was afterward sustained, and the record corrected so as to show that the mortgaged premises were to be sold without appraisement. On the 10th day of September, 1889, Durham gave notice, filed his affidavit and offer to pay costs, verified answer, and motion to open up the judgment and be let in to defend, under § 77 of the code. The motion was overruled, and this action of the court is assigned as error.

The plaintiff in error attacks the sufficiency of the petition and the findings and order of the court in the first instance. Under an application to open up a judgment, we do not understand that a defendant is in a position to attack the regularity of the proceedings. He asks to have the judgment opened up which had been rendered against him upon service by publication. Now, it would hardly be in consonance with good reason for the defendant to say that the judgment he asked to have opened up was not a judgment, or that no judgment was ever rendered, and all of the proceedings of the court were an absolute nullity. The plaintiff in error calls the record he wishes to have opened up a judgment, and he cannot now be heard to say that it is void. This attack comes too late. It is urged that, because the court below had notice of the application to open up the judgment, the defendant had filed the affidavit required by law and offered to pay the costs, if the court required him to pay them, and had filed an answer, it erred in refusing to open up the judgment. To support the contention of the plaintiff in error, there seems to be one essential finding lacking. The court does not find that he filed a full answer to the petition of the plaintiff. ..This is one of the necessary requirements of the statute; and we understand “ a full answer” to mean, not wanting in any essential requisite; a meritorious answer. The answer filed fails.to show a complete defense to the petition. The defendant first denied the allegations of the petition not admitted. He then says:

gage or copy of mortgage is attached to the plaintiff’s petition at the time of filing this answer. He, therefore, denies that he executed or delivered to plaintiff any notes or copies of notes or any mortgage or copy of mortgage which are attached to said petition.

It is obvious, from a reading of this answer, that the defendant did not comply with the statute. He says that on, the 22d day of April, 1889, the notes referred to in the petition amounted to the sum of $6,523.14. What notes? He must have had in mind some notes which he had executed. Yet because these notes had been detached from the petition long after the suit had been brought and judgment had been rendered, he saw fit to deny that he ever executed any notes which were then attached to the petition.

We do not think the plaintiff in error brought himself clearly within the provisions of § 77 of the code, and the district court committed no error in overruling his application to open up the judgment.

We recommend that the order of the court refusing the application be approved.

By the Court: It is so ordered.

All the Justices concurring.