Dearborn Motors Credit Corp. v. Neel

• Decision Date: 03 July 1957
• Docket Number: No. 40595,40595
• Citation: 313 P.2d 243,181 Kan. 598
• Parties: DEARBORN MOTORS CREDIT CORPORATION, Appellee, v. A. S. NEEL, Appellant.
• Court: Kansas Supreme Court

Page 243

313 P.2d 243

181 Kan. 598

DEARBORN MOTORS CREDIT CORPORATION, Appellee, v. A. S. NEEL, Appellant.

No. 40595.

Supreme Court of Kansas.

July 3, 1957.

Syllabus by the Court.

1. An 'irregularity' within the meaning of G.S.1949, 60-3007, Third, authorizing vacation of a judgment for irregularity in obtaining it, is the want of adherence to some prescribed rule or mode of procedure, and consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unreasonable time or improper manner. Babb v. City of Wichita, 172 Kan. 416, 241 P.2d 755.

2. Where service of notice of a hearing on a motion is made by mail pursuant to Rule 44 of this court, the period of time such motion shall stand for hearing as prescribed in Rule 45 of this court, is computed from the date it should have been received by the party to whom addressed, calculated from the date of mailing to the date of delivery in the usual and regular course of mail.

3. A judgment rendered in favor of the defendant upon his motion for judgment on the pleadings was irregularly obtained within the meaning of G.S.1949, 60-3007, Third, as being in want of adherence to a prescribed rule or mode of procedure, when such motion was heard by the district court in the absence of counsel of record for the plaintiff, who, at that time, had not received five full days' notice of the filing of such motion as provided by Rule 45 of this court, held: The judgment was properly vacated upon plaintiff's motion following the expiration of the term of court in which the judgment was rendered.

Archie T. MacDonald, McPherson, argued the cause, and Russ B. Anderson, McPherson, was with him on the briefs, for appellant.

Roy L. Rogers, Wichita, argued the cause, and H. E. Pat Healy, Wichita, was with him on the briefs, for appellee.

FATZER, Justice.

This is an appeal from an order vacating a judgment in favor of defendant appellant, A. S. Neel, rendered upon his motion for judgment on the pleadings in an action by Dearborn Motors Credit Corporation to recover money under a written purchase agreement.

For identification of the parties, defendant appellant A. S. Neel will be referred to as Neel; plaintiff appellee Dearborn Motors Credit Corporation will be referred to as Dearborn, and defendant W. P. Astle, d/b/a Astle Tractor, will be referred to as Astle.

The facts pertinent to this controversy are summarized as follows: On March 12, 1954, Astle sold Neel a Ford diesel tractor for which Neel agreed to pay a deferred time balance of $1,959.90 in three equal installments of $653.30 each, commencing December 12, 1954, except the final installment which was to be the amount then due and unpaid. Neel agreed that Astle might assign and discount the contract to Dearborn. For a valuable consideration Astle assigned the purchase agreement and upon Neel's default in payment Dearborn commenced the present action by filing its verified petition to recover the total of the deferred time balance of $1,959.90 then due and unpaid.

On September 20, 1955, Neel filed a motion to make Astle an additional party defendant, which was allowed, and on March 5, 1956, Astle filed an entry of appearance and waiver of summons.

On February 23, 1956, Neel filed an answer and verified cross-petition against Dearborn and Astle claiming damages for misrepresentation and fraud as to the tractor. In his answer Neel denied indebtedness to Dearborn and alleged that the purchase agreement was usurious. In his cross-petition Neel alleged that Astle and his salesman represented to him the tractor was new; that the representation was false and knowingly and fraudulently made by Astle and his salesman for the purpose of defrauding and inducing him to purchase the tractor, and that he relied upon the representation; that Dearborn 'knew or should have known of such representation and its falsity and as assignee of the purchase agreement attached to plaintiff's petition, is charged with knowledge thereof; that in fact the tractor was not new, but had been used by Astle as a demonstrator on several plowing demonstrations prior to its being sold to Neel; that various mechanical defects developed and the tractor failed to operate properly and would not produce adequate speed for plowing and farm work; that the fuel injection system did not operate properly and the motor used excessive oil; that attachments were to have been furnished with the tractor, which were not furnished, by reason of which Neel had to hire work done; that the tractor was worth $300 rather than $2,786 for which it had been sold to him; and, that as a result he had received total damages in the sum of $3,004.60. The prayer was for judgment against Dearborn and Astle and each of them in that amount.

On September 14, 1956, Astle filed his answer to Neel's cross-petition, which expressly denied the fraud alleged by Neel; denied Neel's allegation that the tractor failed to operate properly, and that if Neel had difficulty with the tractor it was by reason of his own faults and efforts to properly operate it. He alleged that Neel ordered the tractor January 4, 1954, and agreed the tractor should be used by Astle as a demonstrator until delivery to Neel in March 1954; that he and his representatives co-operated with Neel out of all proportion in an effort to satisfy Neel with the tractor, but that Neel refused and did not intend to be satisfied with it. His prayer was that Neel take nothing by his cross-petition.

On September 15, 1956, the day following the filing of Astle's answer, which presented a material issue of fact, Neel filed his motion for judgment on the pleadings against Dearborn, but did not ask for judgment against Astle. The affidavit of Neel's counsel, Archie T. MacDonald, filed September 21, 1956, recited that on September 15, 1956, he deposited in the United States mail true copies of the motion for judgment on the pleadings, properly addressed to counsel for Dearborn; Warnick, Phares, Norton and Healy, Wichita, Kansas, and to counsel for Astle: Kenneth Speir, Newton, Kansas. Accompanying each copy of the motion was a letter addressed to counsel for Dearborn stating that Neel intended to present his motion for judgment on the pleadings to the judge of the district court on September 21, 1956, at 9:30 A.M. or as soon thereafter as the motion might be heard.

On September 21, 1956, neither counsel for Dearborn nor Astle appeared. In presenting his motion for judgment on the pleadings counsel for Neel did not call the district court's attention to the answer filed by Astle the previous day to Neel's cross-petition and the material issue of fact presented therein, but instead reminded the district court that only recently it had overruled Astle's demurrer to Neel's answer and cross-petition. Upon consideration of Neel's motion for judgment on the pleadings the district court found that Neel was entitled to judgment against Dearborn on his cross-petition in the sum of $3,004.60; that Dearborn was entitled to judgment against Neel in the amount of $1,959.90, and that Neel should have judgment against Dearborn for the difference in those amounts. Accordingly, judgment was entered in favor of Neel and against Dearborn for $1,0444.70 with interest at 6 percent until paid.

Counsel for Neel did not submit the journal entry of judgment for approval to counsel for either Dearborn or Astle prior to filing it and did not file the journal entry until October 1, 1956. Counsel for Dearborn did not know of the entry of judgment against their client until they received a copy of the journal entry of judgment forwarded to them on October 1, 1956.

Upon being advised that judgment had been entered against their client, counsel for Dearborn filed a motion to vacate that judgment upon the following grounds: (1) That notice of presentation of the motion for judgment was not given as provided by law; (2) that the notice did not provide sufficient time and did not stand for hearing at the time stated; (3) that through clerical error in their office, Mr. Pat Healy, who was handling the Dearborn litigation, was not aware of the filing of the motion or of the date of its hearing; and (4) that the judgment against Dearborn was void as not supported by the record and pleadings.

On November 2, 1956, Dearborn's motion to vacate was heard. The parties conceded that September 21, 1956, was a regular motion day of the April 1956 term of the district court of McPherson County and that the October 1956 term of that court commenced October 1, 1956; that September 15, 1956, was Saturday, and that on the following Monday, September 17, 1956, Mr. MacDonald's unregistered letter was received in Mr. Healy's law office in Wichita, but due to a clerical error and an inexperienced secretary, that letter and notice was not called to his attention until September 21, 1956, the day of the hearing of Neel's motion for judgment on the pleadings. Upon consideration of the record and the statements of counsel, the district court sustained Dearborn's motion to vacate and the judgment rendered September 21, 1956, and filed October 1, 1956, against Dearborn was vacated pursuant to G.S.1949, 60-3007, Third, for irregularity in obtaining it. From that order Neel has appealed.

Was the judgment against Dearborn irregularly obtained?

Rules 44 and 45 of the supreme court relating to procedure of district courts (174 Kan. XVIII, effective July 1, 1953 printed in G.S.1949 and given section No. 60-3827 for convenience) read:

'No. 44. Counsel filing a motion or demurrer or pleading subsequent to the petition shall, on the day the same is filed, deliver or mail a copy thereof to counsel of record for all adverse parties.

'No. 45. All motions and demurrers shall stand for hearing at the first motion day following the fifth day after the filing of the same and service of copy, as provided by rule 44; but this rule shall not be...