Goodman v. Cretcher

• Decision Date: 10 January 1931
• Docket Number: 29,648
• Citation: 294 P. 868,132 Kan. 142
• Parties: LAUREL GOODMAN et al., Appellees, v. L. W. CRETCHER et al., Appellants
• Court: Kansas Supreme Court

294 P. 868

132 Kan. 142

LAUREL GOODMAN et al., Appellees, v. L. W. CRETCHER et al., Appellants

No. 29,648

Supreme Court of Kansas

January 10, 1931

Decided January, 1931.

Appeal from Scott district court; HARRY E. WALTER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS--Collateral Attack--Effect of General Appearance. Where a defendant in a mortgage foreclosure case has been personally served with summons, and judgment is rendered against her by default, barring her interest in the mortgaged property but giving her the right of redemption for a period of six months, and she thereafter appears and objects to the confirmation for the reason the period allowed for redemption was erroneous in that it was limited to six months instead of eighteen, such voluntary appearance amounts to a general appearance, and neither she nor those claiming under her can thereafter question the validity of the judgment rendered in the action.

2. MORTGAGES--Foreclosure--Pleading Interest Claimed by Defendants. Allegations in a foreclosure petition to the effect that a certain defendant has or claims an interest in the real estate involved, but that such interest is subject and inferior to that of the plaintiff, are sufficient where the defendant is the sole and only heir of a deceased mortgagor without alleging the death of the mortgagor or designating the defendant as the heir of such mortgagor.

3. JUDGMENTS--Collateral Attack--Necessity of Void Judgment. Where the holder of a sheriff's deed issued in a mortgage foreclosure case brings an action to recover possession of the real property covered by his deed, an attack on the judgment rendered in the foreclosure action is a collateral attack and can only be maintained where the judgment is absolutely void.

4. SAME--Validity--Sufficiency of Pleading in Foreclosure Suit. The failure to plead in a mortgage foreclosure petition the death of the mortgagor and the names of the heirs and the finding of the trial court as to such death and heirs without any specific allegations concerning the same, and without any record proof to support such finding, will not render the judgment void when the court had jurisdiction of the subject matter and of the parties.

Leo T Gibbens, of Scott City, for the appellants.

R. D. Armstrong, of Scott City, for the appellees.

Hutchison J. Marshall, J., not sitting.

OPINION

HUTCHISON, J.:

This is an action in ejectment brought by the holder of a sheriff's deed issued in a foreclosure action. The defendant, who is in possession, is the holder of a deed executed by the sole and only heir of the deceased mortgagor. The answer was a general denial and the defense was that the foreclosure judgment was void. The case was tried to the court, a jury being waived, and judgment was rendered for plaintiff, from which defendant appeals, alleging errors in the admission of evidence, the overruling of his demurrer to plaintiff's evidence, the rendition of judgment for plaintiff and overruling the motion for a new trial.

The contention of the appellant is that the foreclosure judgment is void because neither the mortgagor nor her heirs were made parties defendant in the foreclosure action, and that the amended petition in that action failed to allege her death and name her heirs, and that in the trial of the case no evidence was offered to prove her death nor to show who were her heirs. Appellant contends that it is in effect as if the mortgage had been foreclosed without barring the mortgagor or those holding under her by deed or descent, and cites strong authorities sustaining the contention that under such circumstances the judgment is void, and therefore can be attacked in this way and in an action of this kind.

In the trial of this case the court admitted in evidence, over the objection of the appellant, the amended petition and journal entry in the foreclosure case and proof of the death of the mortgagor, prior to the filing of the amended petition in the foreclosure case. This is the evidence for the admission of which error is assigned.

After an adverse ruling on the demurrer to the evidence the defendant, now appellant, introduced the evidence of the court reporter at the foreclosure trial to establish the fact that there was no evidence introduced upon that trial showing the death of the mortgagor nor the name or names of her heirs.

The amended petition shows that Anna K. Starr, the mortgagor, was not in any way financially involved in the indebtedness which her mortgage was given to secure. Her brother and two sisters were the makers of the note which was the basis of the foreclosure action, and in addition to a mortgage given by the makers of the note on a large body of land which they owned, Anna executed a deed to the land here in question in favor of the holder of the note, in which it was stated it was for further security for the indebtedness of her brother and sisters. It is true the amended petition does not name Anna as a party defendant, nor allege her death nor name her heirs, but it does make one Minna Starr a party defendant and alleges that she and other defendants claim some interest in the real estate the exact nature of which is unknown to the plaintiff, "but that whatever right, title, interest, estate, claim or lien the said defendants may have in said real estate the same is subject to and inferior to that of the plaintiff." The record further shows and the court found in the foreclosure case that Minna Starr was personally served with summons but made default.

The journal entry in the foreclosure case shows that the court found that the deed given by Anna K. Starr conveying the tract of land here in question was a mortgage to secure the indebtedness of other defendants and that plaintiff was entitled to a foreclosure of such mortgage and a sale of such real estate. A further finding and an order in the journal entry are as follows:

"The said Anna K. Starr died intestate on the day of , 19 , and that her sole and only heir is Minna Starr and that the said Minna Starr alone is entitled to the equity of redemption in said real estate, and that the other defendants and each of them have no interest in said real estate.

. . . .

"The period of redemption of said real estate shall be six (6) months and the equity of redemption is hereby given to Minna Starr."

It is further shown in the brief of appellee that Minna Starr appeared with other defendants in the foreclosure case after the sheriff's sale and before confirmation thereof and objected to the confirmation of the sale "for the reason that the journal entry of judgment in said cause erroneously fixed the period of redemption at six months, instead of eighteen months," and that the...