Fitzhugh v. Central Trust Co.

• Decision Date: 06 November 1937
• Docket Number: 33417.
• Citation: 146 Kan. 585,72 P.2d 959
• Parties: FITZHUGH v. CENTRAL TRUST CO. et al.
• Court: Kansas Supreme Court

72 P.2d 959

146 Kan. 585

FITZHUGH v. CENTRAL TRUST CO. et al.

No. 33417.

Supreme Court of Kansas

November 6, 1937

Syllabus by the Court.

Petition to vacate judgment in mortgage foreclosure and to enjoin purchaser from disposing of land purchased at sheriff's sale, which alleged judgment was void on ground of illegal service and illegal sheriff's sale notice, and which alleged fraud of purchaser and bank holding second mortgage and that court made illegal nunc pro tunc order on day of sheriff's sale, but which did not state that plaintiff had legal defense to indebtedness upon which judgment in rem was rendered, did not state facts sufficient to constitute a cause of action (Gen.St.1935, 60-3007, 60-3013).

The allegations of a petition to vacate, set aside, and hold for naught the proceedings and judgment in a foreclosure action and to enjoin and restrain the purchaser of the mortgaged land at sheriff's sale from selling or disposing of the same, because the judgment was void on account of illegal service and illegal sheriff's sale notice, fraud practiced by the cross-petitioner and purchaser, and because of the making of an illegal nunc pro tunc order, considered and held that the demurrer to the petition was properly sustained because the petition did not state facts sufficient to constitute a cause of action, particularly in that it did not state that the plaintiff had any legal defense to the indebtedness upon which the judgment in rem was rendered and sale had.

Appeal from District Court, Cowley County; Oliver P. Fuller, Judge.

Action by Kathrine Fitzhugh against the Central Trust Company, a corporation, and others. Judgment for the defendants, and plaintiff appeals.

Wm. L Cunningham, D. Arthur Walker, F. G. Leach, and Wm. E. Cunningham, all of Arkansas City, and John Madden and John Madden, Jr., both of Wichita, for appellant.

Ellis Fink, of Winfield, and Dean McElhenny and Philip C. Gault, both of Topeka, for appellee Central Trust. Co.

Harry O. Janicke, of Winfield, for other appellees.

HUTCHISON Justice.

The appeal in this case is from the ruling of the trial court sustaining a demurrer to the petition, and the journal entry of such ruling states two grounds upon which the demurrer was sustained: First, because the plaintiff had appeared and had her day in court in the action in which she complains of the judgment rendered therein; and, second, for the reason that she does not plead nor allege in her petition that she has any legal defense to the indebtedness upon which the judgment was rendered and sale had.

The action was one in equity to vacate, set aside, and hold for naught the proceedings in a certain foreclosure action commenced in Cowley county on March 9, 1934, by the Central Trust Company against her and other owners of a large tract of land in that county, in which action there were other defendants, including the First National Bank of Winfield, Kan., and to enjoin and restrain the First National Bank and one M. F. Jarvis, its president, from selling or disposing of the real estate described in said foreclosure proceeding.

The petition in this action alleged that plaintiff was a nonresident of the state of Kansas when the foreclosure suit was commenced, and was served therein only by publication, which she alleged to have been illegal and ineffective so as to make any judgment rendered thereon against her absolutely void. Plaintiff referred in detail to all the pleadings, documents, and exhibits contained in the foreclosure action as a part of this action, including the petition, affidavit for publication, publication notice, cross-petition of the First National Bank of Winfield, journal entry of judgment, sheriff's sale notice, proof of publication thereof, nunc pro tunc order, and decree of confirmation of sheriff's sale. The petition alleged errors and defects in the sheriff's sale notice, many allegations of fraud on the part of the defendant bank and its president, and particularly the attempted modification and change of the journal entry of judgment by the nunc pro tunc order made on the day of the sheriff's sale.

In the counter abstract there are set out two motions; one to set aside the sheriff's sale made on July 9, 1934, and the other a motion for new trial, both of which were filed July 11, 1934, by attorneys who state below their names, which were signed to these papers, the names of four defendants, including this plaintiff. These two documents, apparently filed in her behalf, were doubtless the foundation for the first reason assigned by the trial court for sustaining the demurrer of the bank to plaintiff's petition, which reason assigned was that she had already had her day in court. Her petition was verified, and in it she stated that she made no personal appearance in the foreclosure action and authorized no person to make an appearance for her, and that she had no knowledge of the commencement of the foreclosure action until some time after January 3, 1935.

We think the first reason assigned by the trial court for sustaining the demurrer to the petition was questionable because, for the purpose of the ruling upon the demurrer to the petition, the allegations therein contained, which were verified by her, must be taken as true. The petition contained numerous allegations of fraud on the part of the First National Bank of Winfield and its president, but there was a serious scarcity of facts stated in the petition which would constitute the fraud alleged, and without a statement of facts and conduct from which a court can conclude there was fraud, the allegations, which were more nearly in the form of conclusions, will not be effective.

The question as to whether or not the petition fails to state a legal defense, which was the second reason assigned by the trial court for sustaining the demurrer, will require a detailed statement of the principal features and facts alleged in the petition concerning the foreclosure case and the relation of the plaintiff herein to the...