Choat v. Boyd

• Decision Date: 05 November 1898
• Docket Number: 10701
• Parties: L. A. CHOAT v. ALBERT H. BOYD
• Court: Kansas Supreme Court

54 P. 1042

59 Kan. 682

L. A. CHOAT v. ALBERT H. BOYD

No. 10701

Supreme Court of Kansas

November 5, 1898

Decided July, 1898.

Error from Pawnee District Court. S.W. Vandivert, Judge.

Order reversed.

J. W Rose, for plaintiff in error.

C. N Sterry and W. H. Vernon, for defendant in error.

OPINION

ALLEN J.

The defendant in error filed a motion for execution against the plaintiff in error to satisfy the judgment rendered in favor of Boyd against the People's Bank of Larned referred to in the preceding case between the same parties. Thereupon Choat filed an answer in which he alleged that the judgment was rendered without jurisdiction; that the claim on which it was based was false and fraudulent; that it was for unliquidated damages for the conversion of property, and was taken by default without the introduction of any evidence.

The answer is very long and states minutely the facts bearing on the question of jurisdiction as claimed by Boyd, and also those bearing on the question of fraud on the part of Boyd in obtaining the judgment. When the motion came on for hearing Boyd objected to any hearing upon the answer and cross-petition of Choat for the reasons "that the files in this case show that the questions raised were res adjudicata between the parties; that the said L. A. Choat has no standing in court to make an attack upon said judgment; that the answer and cross-petition so filed does not state facts sufficient to constitute any reason why the judgment rendered should be set aside." This objection was sustained by the court. The plaintiff then made specific offers of proof of the various averments in the answer. These were objected to for the same reasons, and the objection was sustained. On behalf of Boyd, testimony was then offered showing that Choat held twenty-five shares of stock in the bank, of the par value of one hundred dollars a share, and that he had paid in only thirty per cent. thereof. The court thereupon awarded execution in favor of Boyd against Choat for $ 4250. Choat now seeks a reversal of this order.

The general character of the proceedings on this motion is the same as that in the action in which the judgment was rendered in favor of Boyd against the bank and against Choat. There has been a careful and well-sustained purpose to prevent Choat from ever having a hearing on the merits of any matter pending before the court. It seems almost inconceivable that a...