Foreman v. Ward

• Decision Date: 01 January 1896
• Docket Number: 46
• Citation: 2 Kan.App. 739,43 P. 1139
• Parties: D. W. FOREMAN v. E. J. WARD et al
• Court: Kansas Court of Appeals

43 P. 1139

2 Kan.App. 739

D. W. FOREMAN v. E. J. WARD et al

No. 46

Court of Appeals of Kansas, Northern Department, Eastern Division

January 1, 1896

Opinion Filed February 14, 1896.

MEMORANDUM.--Error from Johnson district court; JOHN T BURRIS, judge. Motion by M. F. Harp and others to modify the judgment rendered in the case of D. W. Foreman against E. J Ward and others. Motion granted. Plaintiff brings the case to this court. Dismissed. The opinion herein, filed February 14 1896, states the facts.

Petition dismissed.

John T. Little, and J. W. Parker, for plaintiff in error.

I. O. Pickering, for defendants in error.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

In 1887, D. W. Foreman sold to Mrs. E. J. Ward a farm in Johnson county, Kansas, for $ 10,000. Mrs. Ward paid in cash the sum of $ 2,500, and gave, with her husband, her notes for the balance, secured by a mortgage on the land. On June 15, 1890, Mrs. E. J. Ward commenced an action against Foreman for damages, in the district court of Johnson county, for false representations concerning the sale of said land, and recovered a judgment against Foreman for the sum of $ 2,000 as damages and the further sum of $ 360.75 as costs. During the same year Foreman commenced an action in said court against Mrs. Ward and her husband, D. M. Ward, to recover the balance of the purchase-price of the farm, and to foreclose the mortgage, and on September 30, 1889, he recovered a judgment against both defendants for the sum of $ 7,512.57, and a judgment for $ 1,455.77 against Mrs. Ward. In November, 1890, Foreman began his suit in the same court against the defendants, E. J. and D. M. Ward, for the purpose of having their judgment of $ 2,000 and costs therein of $ 360.75 against him set off on his judgment of $ 7,512.57, and upon the hearing of this case the court rendered judgment in favor of Foreman and offset such judgment and costs, and ordered the same to be paid by crediting those amounts on the judgment of Foreman. This was on April 3, 1891, at an adjourned session of the January term of said court. On May 20, 1891, and at the May term of said court, M. F. Harp and other alleged witnesses in the case of E. J. Ward against D. W. Foreman filed a motion in the case of Foreman against E. J. and D. M. Ward, being the case in which the set-off had been made, asking the court to modify the judgment rendered therein by deducting from the amount set off their fees in the case of Ward against Foreman, claiming that they were a part of the $ 360.75 which had been set off. The court sustained the motion, and ordered the judgment modified as asked. Foreman brings the case to this court for review.

The record in this case discloses the fact that the case presented to us for review is the case of D. W. Foreman plaintiff in error, v. E. J. Ward and D. M. Ward, defendants in error, and that the errors complained of were committed by the trial court upon a motion filed in that case by certain parties who were...