Flint v. Dulany

• Decision Date: 08 October 1887
• Citation: 37 Kan. 332,15 P. 208
• Court: Kansas Supreme Court
• Parties: CHARLES L. FLINT v. DULANY & MCVEIGH, et al

15 P. 208

37 Kan. 332

CHARLES L. FLINT v. DULANY & MCVEIGH, et al

Supreme Court of Kansas

October 8, 1887

Error from Anderson District Court.

ACTION by Flint against Dulany and twenty-two others, to quiet his title to certain lands in Anderson county. On September 13 1881, judgment by default was rendered for plaintiff. Thereafter the judgment against the defendant Wickel was opened, and he was let in to defend. On September 4, 1884, he filed his answer or cross-petition, to which the plaintiff demurred. On December 11, 1885, the court overruled this demurrer, and found for the defendant. New trial denied. The court adjudged that "the defendant William Wickel recover of Charles L. Flint, plaintiff, the sum of $ 480, his damages sustained in this action, together with his costs herein, taxed at $ ; and that the deed mentioned in plaintiff's petition is void as against said defendant and is hereby set aside as against defendant." Other facts are stated in the opinion. Flint brings the case here.

Judgment affirmed.

Fabius M. Clarke, for plaintiff in error.

Johnson Poplin & Johnson, for defendant.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On the 21st day of February, 1881, Charles L. Flint brought an action, in the district court of Anderson county, against Dulany & McVeigh, William Wickel, and a number of other persons; and in his petition he alleged that he was the owner of several tracts of real estate in Anderson county; and that he held them by virtue of certain tax deeds which had been executed by the county clerk of that county, which deeds had been duly recorded. He averred that the defendants claimed some title or interest in the lands, and that the action was brought to quiet his title to the lands as against each and all of the defendants. An affidavit was filed on behalf of the plaintiff, alleging that each of the defendants resides out of the state of Kansas; that service of summons could not be made on them within the state; and that the action was brought for the purpose of determining the right and interest of the plaintiff in real property. On this affidavit, service was made by publication; and on the 13th day of September 1881, default being made by the defendants, a decree was rendered quieting the title to the lands mentioned, in the plaintiff, and barring the defendants from setting up any title, estate, or interest to them. On September 4, 1884, and within three years after the decree had been entered, William Wickel filed a motion asking that the judgment and decree rendered against him on September 13, 1881, be opened up, and that he be let in to defend, for the reason that there was no service other than by publication in a newspaper, and that he had no actual notice of the pendency of the action in time to appear and make his defense. Notice was given to the plaintiff, an answer was filed, and proof made of the statements made in the motion; and thereupon the court, both parties being present, sustained the motion by opening the judgment and allowing Wickel to defend. No exception was taken to this order. The answer filed by Wickel was, first, a general denial of the allegations contained in the plaintiff's petition. He further answered, by alleging that at the time of the rendition of the decree in the action he was the owner of the south half of the northeast quarter of section thirty-four, township twenty-one, range twenty-one, situate in Anderson county; that the lands were wild and unimproved, and had never been in the actual possession of the plaintiff; that the tax deed and the proceedings upon which it was based were void; that the sale was made for taxes not authorized by law; that the sale upon which the tax deed was executed "was made while and when there was an open sale of said lands for taxes to said Anderson county, which had not been redeemed from, and that the certificate thereof had not been assigned; and that the taxes for which said lands were sold, and upon which sale said tax deed was issued, were subsequent to said open sale to the county, the certificate of which had not been assigned." For a further answer and cause of action, the defendant alleged that the plaintiff, after procuring the judgment and decree which was based alone on service by publication in a newspaper, had sold the land; and that the same was reasonably worth the sum $ 480. He prayed judgment against the plaintiff, declaring his tax deed void, and that he had no claim or lien on the land; and also for a recovery from the plaintiff of the sum of $ 480, the value of the land sold by plaintiff under the judgment and decree which had been vacated. The plaintiff demurred to the answer, upon two grounds: First, that the causes of action therein were improperly joined; and, second, that the facts stated were insufficient to constitute a cause of action, or a defense. The demurrer was overruled by the court, and a trial had, which resulted in a judgment and decree in favor of the defendant. The plaintiff brings the case here upon a transcript...