First Nat. Bank of Newton v. Wm. B. Grimes Dry Goods Co.

• Decision Date: 07 March 1891
• Citation: 45 Kan. 510,26 P. 56
• Parties: THE FIRST NATIONAL BANK OF NEWTON, KANSAS, et al., v. THE WM. B. GRIMES DRY GOODS COMPANY
• Court: Kansas Supreme Court

26 P. 56

45 Kan. 510

THE FIRST NATIONAL BANK OF NEWTON, KANSAS, et al., v. THE WM. B. GRIMES DRY GOODS COMPANY

Supreme Court of Kansas

March 7, 1891

Error from Harvey District Court.

THE opinion states the nature of the action and the material facts.

Judgment affirmed.

Brown & Kline, for plaintiffs in error.

Jas A Reed, and Wm. G. Clark, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The present proceeding in error was instituted in this court by the First National Bank of Newton, and others, against the Wm. B. Grimes Dry Goods Company, a corporation, to reverse an order of the district court of Harvey county, made upon a motion filed in such court by the Wm. B. Grimes Dry Goods Co., under the third subdivision of § 568 and the last clause of § 575 of the civil code, for the purpose of having a judgment, formerly rendered by such court, vacated or modified so far as the same might seem to affect or interfere with any of the rights or interests of the Wm. B Grimes Dry Goods Company. In the original action in which such judgment was rendered, Tootle, Hosea & Co. were the plaintiffs, and the First National Bank of Newton, and a great many others, were the defendants. The petition of the plaintiffs in that action named the Win. B. Grimes Dry Goods Co. as a defendant, but no service of summons was ever made upon the company, nor did it in fact at any time appear in the action, except at a time long after the time when such judgment was rendered, to file and prosecute the aforesaid motion. Some of the attorneys of the other parties, however, who were friendly to the Win. B. Grimes Dry Goods Co., upon their own volition and without any authority from the dry goods company, made an appearance for the company and filed an answer for it, and also on the trial attempted to introduce evidence to prove its case; but counsel representing the First National Bank of Newton and others objected to the introduction of any such evidence, for the reason, among others, that another suit was pending in the same court in which such matters should be litigated; and the court for that reason sustained the objection, and the aforesaid attorneys appearing for the Wm. B. Grimes Dry Goods Co. were not permitted to litigate or protect its alleged rights or interests at that time nor in that action. Afterward the court rendered a judgment in the action, but it did not at that time have, and never had, any intention to render any judgment that would in any manner or degree affect any of the rights or interests of the Wm. B. Grimes Dry Goods Co., but always intended otherwise; but after the decision of the court, counsel for the First National Bank of Newton and others drew up the form of the judgment which they desired to have entered, and the court, believing that it did not in any manner affect or interfere with any of the rights or interests of the Wm. B. Grimes Dry Goods Co., permitted it to be entered.

This form of judgment, however, if permitted to remain, would, it is now believed, contrary to the intention of the court, seriously and materially affect the rights and interests of the Wm. B. Grimes Dry Goods Company, but the judgment as entered is not only irregular for the reason that it did not and does not express the real intention of the court, but it is also absolutely void as against the Wm. B Grimes Dry Goods Co., for the reason that such company was never a real party to the action. The attorneys who appeared for the Wm. B. Grimes Dry Goods Co. in that action had no authority from the company to make any such appearance, or to file any answer, or to do anything else for the company in that action; and the company never ratified or confirmed any of the acts of such attorneys. The judgment was rendered on February 6, 1889.

On February 17, 1890, the Wm. B. Grimes Dry Goods Co. instituted proceedings in the said district court to vacate or modify the judgment so that it would not in any manner affect, or seem to affect, any of the rights or interests of the company. Such proceedings were instituted upon the aforesaid motion filed by the company in the district court, with proper notice thereof given to the adverse parties or to their attorneys. The motion was founded upon the third subdivision of § 568 of the civil code, which provides, among other things, for vacating or modifying judgments or orders "for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order;" and also upon the last clause of § 575 of the civil code, which reads as follows: "A void judgment may be vacated at any time, on motion of a party, or any person affected thereby." And the motion was also filed and notice given upon the authority of § 569 of the civil code, which reads, so far as it is necessary to quote it, as follows:

"The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action."

See also generally, as to the notice required to be given of the hearing of motions, § 535 of the civil code. At the hearing of the motion a great many objections were urged by counsel for the First National Bank of Newton and others, but it will be necessary to mention only a very few of them.

The court...