Gooden v. Lewis

• Decision Date: 06 October 1917
• Docket Number: 21027
• Citation: 167 P. 1133,101 Kan. 482
• Parties: GOODEN v. LEWIS.
• Court: Kansas Supreme Court

167 P. 1133

101 Kan. 482

GOODEN v. LEWIS.

No. 21027

Supreme Court of Kansas

October 6, 1917

Syllabus by the Court.

It is not a fraud practiced by the successful party, under section 596 of the Civil Code (Gen. St. 1915, § 7500) for a plaintiff to sue on a note and mortgage defective for want of the signature of defendant’s wife, nor for plaintiff to obtain judgment thereon by default.

An attachment affidavit is not fraudulent, within the purview of section 596 of the Civil Code, so as to vitiate proceedings taken pursuant to it, merely because if the attachment had been resisted it might have been shown that the allegations of the affidavit were false. Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 P. 1079, 25 L. R. A. (N. S.) 1237; Garrett v. Minard, 82 Kan. 338, 108 P. 80.

A judgment in an attachment proceeding, entered by default determines the truth of the attachment affidavit and the propriety of the attachment.

Facts pleaded in a petition to vacate a judgment examined and held insufficient to constitute an "unavoidable casualty or misfortune, preventing the party from ... defending" within the meaning of section 596 of the Civil Code.

A litigant ordinarily cannot maintain an action to vacate a judgment on the ground of "unavoidable casualty or misfortune," where he was grossly negligent and inattentive to his lawsuit during its entire pendency, and for nearly three months after judgment by default was rendered against him.

The power of the trial court to vacate a judgment before and after the expiration of the term of court discussed.

Appeal from District Court, Kiowa County.

Action to vacate a judgment by J. E. Gooden against C. E. Lewis. Demurrer to petition overruled, and defendant appeals. Reversed.

O. G Underwood and J. W. Davis, both of Greensburg, for appellant.

C. H. Bissitt and J. D. Beck, both of Greensburg, for appellee.

OPINION

DAWSON, J.

The plaintiff, J. E. Gooden, brought this action against the defendant, C. E. Lewis, to vacate a judgment theretofore obtained by Lewis against Gooden.

In this action the petition gives a synopsis of the prior case of Lewis v. Gooden, which was an action on two promissory notes and for the foreclosure of a chattel mortgage on a threshing outfit, separator, engine, tank, etc. The action was begun September 24, 1915, and an attachment for the mortgaged chattels was issued, and they were levied upon by the sheriff. The answer of Gooden was due on October 20, 1915, but he made default. On January 3, 1916, judgment by default was rendered against Gooden, and the chattel mortgage was foreclosed and the property sold to satisfy the mortgage and the attachment. On January 31, 1916, the sheriff sold the property after proper order of sale and publication, and made his return on the day of sale.

The present action was filed on March 29, 1916, under section 596 of the Civil Code (Gen. St. 1915, § 7500), and for the statutory ground of "unavoidable casualty and misfortune" which prevented him from defending in the prior case Gooden pleaded:

That in August, 1915, he had broken his leg and was confined to a hospital in Hutchinson until October 3d, when he returned to his home, but was then unable to walk or attend to his ordinary duties, and remained unable to walk until after judgment was rendered against him on January 3, 1916. "That on October 20, 1915, the answer day in said action, this plaintiff came to Greensburg [the county seat] in an automobile, assisted by an attendant, to see counsel and have answer filed or defense made, but was unable to climb stairways to offices, or to the courthouse, and on that occasion saw counsel, and understood that counsel would arrange to have said case attended to or have plaintiff notified when to give same further attention. But that counsel so consulted failed to file any answer or to arrange to have same done or to have any notice given to this plaintiff as to what further attention was required of him or when, and that this plaintiff relied upon said counsel attending to said matter for him; that afterward, and on January 3d, when said matter came up for trial, and upon learning of that fact, this plaintiff, being unable to attend to the same, had a friend, one Chas. Tanner, phone to said counsel to attend to said cause and procure a continuance till such time as plaintiff, defendant in said action, could be able to attend, and this plaintiff relied upon said request being granted. And further, at said time, January 3, 1916, the wife of this plaintiff had but the day prior been confined, and plaintiff, being unable to procure other help, was compelled by the emergency to remain in attendance upon his wife on the 3d day of January, 1916. Thereby and therefore he did not and could not attend in person to said litigation on the 3d day of January, 1916, but relied upon an answer being filed and said cause continued to some other date for the reasons above set forth."

Other allegations of Gooden’s petition were that the chattel mortgage on the threshing outfit was void because his wife had not signed the mortgage, and that the property was his means of livelihood; that the facts in Lewis’s affidavit procuring the attachment were false, and the evidence supporting the attachment was false and fraudulent; and Gooden’s petition categorically traversed all the statutory grounds under which an attachment might issue. The defendant Lewis demurred to this petition, and the overruling of the demurrer gives rise to this appeal.

The pertinent clauses of the Civil Code, § 596, under which plaintiff sought to maintain this action read:

"The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: ...

Fourth, for fraud, practiced by the successful party, in obtaining the judgment or order....

Seventh, for unavoidable casualty or misfortune preventing the party from prosecuting or defending."

There is practically no question of fraud in this case. It was not a fraud for Lewis to sue on the note and mortgage. He fairly put them in issue and fairly obtained judgment thereon. Johnson v. Jones, 58 Kan. 745, 51 P. 224; Wagner v. Beadle, 82 Kan. 468, 108 P. 859, Syl. par. 1. Gooden might have defeated that action if he had set up and proved the defense now pleaded. A judgment is not fraudulent merely because it might have been avoided by making a defense to it or by making some other defense than the one set up.

"A party may have a good defense to an action, but if he fail to make such defense when the case is called for trial, he will not be permitted to come in weeks afterward and say that the judgment was wrong and ought to be set aside simply because he had a good defense." Iliff v. Arnott, 31 Kan. 672, 3 P. 525; Vail v. School District, 86 Kan. 808, 811, 122 P. 885.

Neither was the attachment affidavit fraudulent. It might have been untrue. Gooden might have shown its falsity; he might have beaten the attachment if he had assailed it. The validity of the attachment and the affidavit and other evidence supporting it were in issue, and the judgment determined the propriety of the one and the truth of the other. Plaster Co. v....