Boston Loan & Trust Co. v. Organ

• Decision Date: 05 May 1894
• Citation: 36 P. 733,53 Kan. 386
• Parties: BOSTON LOAN & TRUST CO. v. ORGAN et al.
• Court: Kansas Supreme Court

36 P. 733

53 Kan. 386

BOSTON LOAN & TRUST CO. v. ORGAN et al.

Supreme Court of Kansas

May 5, 1894

Syllabus

1. Mere irregularities in the method of obtaining the vacation of a judgment wrongfully obtained, and to which no objections were made, will not defeat the order vacating such judgment nor can the omission of a verification to a pleading be regarded as a fatal defect, where the parties proceeded to trial on the merits, without objection, as though the pleading was verified, and the issues properly.

2. Pleadings examined, and held to be sufficient to authorize the trial of the questions submitted to the court and the evidence found to be sufficient to sustain the decision vacating the judgment and permitting the garnishee to come in and defend against the claim of the plaintiff.

Error to district court, Lyon county; Charles B. Graves, Judge.

Action by the Boston Loan & Trust Company against W. M. Organ, A. O. Wharton, and John S. Kenyon, garnishee. The garnishee was discharged, and plaintiff’s attachment dissolved, and plaintiff brings error. Affirmed.

On May 20, 1889, the Boston Loan & Trust Company brought an action against W. M. Organ and A. O. Wharton to recover $890.37 alleged to be due upon a promissory note which they had executed. Upon the same day an affidavit was filed to obtain service by publication, and also an affidavit to obtain an attachment; but no publication was then made, nor was any order of attachment issued. On June 29, 1889, the plaintiff filed an affidavit for an order of attachment issued. On June 29, 1889, the plaintiff filed an affidavit for an order of garnishment, and naming John S. Kenyon as garnishee. On July 8, 1889, Kenyon filed a statutory answer, in which he denied any indebtedness to either of the defendants, and all liability as garnishee. On July 15, 1889, the plaintiff served Kenyon with notice that it elected to take issue on his answer as garnishee. Afterwards, on July 29, 1889, Kenyon, at the request of the plaintiff, gave his deposition, in which he stated the business transaction which he had had with the defendants, and positively declared that he did not owe the defendants, or hold any property to which they were entitled. On October 25, 1889, the plaintiff procured the issuance of an order of attachment, based upon the affidavit filed in the previous May, which was levied upon several tracts of real estate as the property of A. O. Wharton, but the garnishee was not made a party to the attachment proceeding. On January 6, 1890, and in the absence of the garnishee, the plaintiff took a judgment by default against Kenyon as well as the defendants, and in the entry it was found that Kenyon had in his possession and under his control the tracts of land that have been mentioned, the legal title of which was in him, and which he held as trustee for Wharton. A personal judgment against Kenyon was rendered for the full amount of the debt due by Organ and Wharton, and it was declared to be a lien upon the land mentioned, a sale of which was ordered to satisfy the judgment. Soon afterwards, and on February 4, 1890, Kenyon learned of the attachment, and of the judgment that had been given, when he intervened, and filed a petition or inter plea setting up that he held the legal title, and was the owner in fee simple, of the real estate which had been attached and ordered sold, and in which he alleged that the claim of the plaintiff to the real estate was wrongful and void, and that neither the plaintiff nor any of the defendants had any estate in or lien on the land. He asked for a judgment quieting his title to the land, for a dissolution of the attachment which had been levied thereon, and for such other relief as he might be entitled to. On February 25, 1890, the plaintiff answered, denying the allegations of Kenyon, and setting forth the judgment which had been rendered on January 6, 1890, which had been decreed a lien on the real estate. It was alleged that this judgment was unreversed and unsatisfied. In reply to this answer Kenyon averred that the judgment referred to by the plaintiff was wrongfully procured, and that there was no evidence to warrant its rendition. He stated that, after he was served with notice that the plaintiff elected to take issue with him on his answer as garnishee, the plaintiff took his deposition, and induced him to believe that that deposition was to be used in the cause; but that the plaintiff, in fraud of the rights of the garnishee, did not permit the deposition to be brought to the knowledge or attention of the court, but took the judgment well knowing that Kenyon was not indebted to the plaintiff in any sum whatever, and well knowing that he was totally ignorant of the fact that any such judgment was claimed, and well knowing that at the time the said deposition was taken the said Kenyon had been given by plaintiff to understand, and did understand, that he was not being held to any further answer. He further averred that the judgment was unjust and inequitable, and prayed that it might be set aside. On ...