Cooper v. Rhea

• Decision Date: 12 March 1910
• Docket Number: 16,404
• Citation: 82 Kan. 109,107 P. 799
• Parties: A. B. COOPER, Appellee, v. JOHN RHEA, Appellant
• Court: Kansas Supreme Court

107 P. 799

82 Kan. 109

A. B. COOPER, Appellee, v. JOHN RHEA, Appellant

No. 16,404

Supreme Court of Kansas

March 12, 1910

Decided January, 1910.

Appeal from Trego district court; JACOB C. RUPPENTHAL, judge.

Judgement reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS -- Vacation -- Mistake -- Issues Presented by Pleadings --"Irregularity." Under the provision (Civ. Code, § 568, subdiv. 3; Gen. Stat. 1901 § 5054, subdiv. 3) that a judgment may be set aside at a subsequent term "for mistake, neglect or omission of the clerk, or irregularity in obtaining" it, a court may vacate a judgment rendered on the pleadings because of a misapprehension as to what allegations they in fact contained.

2. LIMITATION OF ACTIONS -- Removal of Cloud from Title. The right to maintain an action to remove a cloud from a title is a continuing one to which the statute of limitation is not applicable.

3. FORECLOSURE -- Recovery against Defendant Not in Privity with Mortgagor -- Proof that the Mortgagor Had Title. In an action brought to foreclose a mortgage, in order to establish a ground of recovery against a defendant who does not claim under its maker, the plaintiff is required to show that the mortgagor had title to the property, so that the mortgage created a lien.

S. M. Hutzel, and A. D. Gilkeson, for the appellant.

W. E. Saum, for the appellee.

OPINION

MASON, J.:

A. B. Cooper began an action upon several coupons more than five years past due, asking the foreclosure of a real-estate mortgage given to secure the bond from which they had been clipped. The mortgagors, who are not shown to have otherwise encumbered or conveyed their title, were named as defendants, the petition alleging that they had been absent from the state long enough so that the bar of the statute of limitation had not fallen. They do not appear to have been served, and the plaintiff dismissed the case as to them. John Rhea was made a defendant under the allegation that he claimed an interest in the mortgaged property, but that any right he had therein was inferior to the lien of the plaintiff. He filed an answer alleging, among other matters, that the plaintiff's cause of action had not accrued within five years prior to the commencement of the suit. The plaintiff demurred to this part of the answer. On December 17, 1906, the court overruled this demurrer, and, as the plaintiff declined to plead further, gave judgment for Rhea. After the lapse of the term the plaintiff filed a motion to open this judgment, on the ground that he had misunderstood the character of the answer when he elected to stand upon his demurrer. On November 8, 1907, the court sustained the motion and set aside the judgment. Thereafter Rhea filed an amended answer, consisting of a general denial and a plea of the five-year statute of limitation. A trial was then had. The plaintiff introduced the coupons. No other evidence was offered by either party. Judgment was rendered for the plaintiff ordering a sale of the property and barring all claims of Rhea, who appeals.

The first question presented is whether the court erred in vacating the original judgment. The plaintiff made affidavit that at the time the judgment was rendered he understood that the parties and the court had agreed that the answer was to be amended so as to set out a tax deed, and that it was to be treated at the hearing on the demurrer as though such amendment had already been made. He also introduced an affidavit of the former judge of the court, who presided when the judgment was rendered, stating that he had understood that to be the situation and had acted upon that understanding. It therefore was shown that the judgment was rendered on the pleadings while the court and the losing party were under a mistaken impression as to what issues they presented. The power of the court to correct such an error, even at a subsequent term, is so essential to the orderly administration of justice that it ought not to be denied unless in virtue of legislation admitting no other reasonable construction. A judgment so rendered does not express the real purpose of the court. The situation it presents is analogous to that arising when the record made does not conform to the action really taken. It is as necessary that a speedy remedy should be afforded in the one case as in the other. In many states a mistake of fact is recognized as an independent ground for vacating a judgment after the term has lapsed. (23 Cyc. 931; 15 Encyc. Pl. & Pr. 245.) Here authority for such action must be found, if at all, under the provision that a court may vacate or modify its own judgment "for mistake, neglect or omission of the clerk, or irregularity in obtaining" it. (Civ. Code, § 568, subdiv. 3; Gen. Stat. 1901, § 5054, subdiv. 3.) Assuming that the "mistake" referred to in the language quoted can only be that of the clerk, the word "irregularity" must be given a broad enough meaning to cover a case where the court has acted upon an erroneous understanding of the facts. Such has been the practical construction placed upon it. (Small and others v. Douthitt and others, 1 Kan. 335; Tobie v. Comm'rs of Brown Co., 20 Kan. 14; Murphy & Bros. v. Swadner, 34 Ohio St. 672.)

A specific objection is made to the order opening the judgment on the ground that the plaintiff did not, as required by the statute (Civ. Code, § 572; Gen. Stat. 1901, § 5058; Schuler v. Fowler, 63 Kan. 98, 64 P. 1035), make a showing that he had a valid cause of action. His affidavit set out that he believed he had a complete defense to the answer. Under the circumstances of the case--the real issue being one of law--this must be deemed sufficient.

The defendant maintains that his plea of the statute of limitation was good. He could not, however, take advantage of the fact that the coupons were more than five years overdue unless he claimed under their makers. ( Ordway v. Cowles, 45 Kan. 447, 25 P. 862.) His answer was silent as to the nature of his interest in the land, and therefore did not show that he was not in privity with the mortgagors; but in order to avail himself of the plea that the mortgage was barred he was required affirmatively to show that he held under them. (Trust Co. v. Parker, 65 Kan. 819, 70 P. 892; 27 Cyc. 1562.) Inasmuch as he did not place himself in a position to assert that the coupons were outlawed, the five-year statute of limitation...