Graham v. Pepple
| Decision Date | 08 February 1930 |
| Docket Number | 29,092 |
| Citation | 284 P. 394,129 Kan. 735 |
| Parties | MAUDE GRAHAM, Appellee, v. H. A. PEPPLE, Sheriff of Washington County, and C. A. LINDAHL, Appellants |
| Court | Kansas Supreme Court |
Decided January, 1930.
Appeal from Washington district court; TOM KENNETT, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
LIS PENDENS--Application to Divorce Actions. Where an action for divorce and alimony is properly and timely instituted and prosecuted by a wife against her husband, and in her petition she specifically claims the right to have a definitely described tract of land within the jurisdiction belonging to the husband set apart to her as permanent alimony, a third party cannot acquire an interest in that property by the subsequent institution of an action against the husband for the recovery of money and by attaching that particular tract of land to the satisfaction of any judgment he may obtain against the husband; and although judgment in the attaching creditor's case is rendered some time before the rendition of the judgment in the wife's action awarding her the property as permanent alimony, she is entitled to injunctive relief to protect her rights in the property against its sale to satisfy the judgment of the attaching creditor.
J. R. Hyland, of Washington, for the appellants.
Edgar Bennett and A. C. Bokelman, both of Washington, for the appellee.
This was an action to determine the relative rights of rival claimants in 53 1/3 acres of Washington county land to which one Russell E. Graham held title prior to the inception of the matters to be reviewed herein.
On September 25, 1928, this plaintiff, Maude Graham, filed suit in the district court of Washington against her husband, Russell E. Graham, setting up a cause of action for a divorce, and in which she alleged that 53 1/3 acres of Washington county land described in terms of government survey was owned by her husband; and she prayed that such tract of land be set apart to her as permanent alimony and for support of their minor children.
Publication service on Russell E. Graham was begun on September 27, 1928, and completed October 11, 1928. Russell E. Graham entered a general appearance and filed answer on November 5, 1928.
On December 1, 1928, C. A. Lindahl filed suit in the same court against Russell E. Graham for the recovery of money, and on December 7, 1928, Lindahl filed an attachment affidavit pursuant to which an order of attachment issued in the cause of Lindahl v. Graham, whereby the 53 1/3 acres was attached as the property of Graham.
On March 4, 1929, the cause of Lindahl v. Graham came on for trial, and judgment was rendered in behalf of Lindahl for $ 650, and the judgment declared to be a first and prior lien on the 53 1/3 acres, and that the attached land should be sold by the sheriff to satisfy Lindahl's judgment unless Graham paid the judgment within ten days--by March 14, 1929.
On March 20, 1929, the divorce action between Maude Graham and Russell E. Graham came on for hearing, and judgment in favor of plaintiff was rendered, granting her a divorce, and she was awarded the 53 1/3 acres precisely as prayed for in her petition--as permanent alimony and for the support of the three children, whose custody was also conferred on plaintiff. The land award was made subject "to all valid liens at the time of filing of the divorce action."
On April 8, 1929, an order of sale issued out of the office of the clerk of the district court to the sheriff, directing him to sell the 53 1/3 acres at auction to satisfy the judgment in Lindahl v. Graham. To prevent the sale of the property, pursuant to that order of sale, this action was begun by Maude Graham, whose petition narrated in detail the matters set forth above.
The defendant Lindahl and the sheriff lodged a general demurrer against plaintiff's petition. This demurrer was overruled, and defendants appeal.
Obviously the trial court's judgment was controlled by the rule of lis pendens, and the propriety of its application to the case at bar is the only question which requires our consideration. The Kansas doctrine of lis pendens is largely a matter of statute. The pertinent provision of the code reads:
"When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiff's title; but such notice shall be of no avail unless the summons be served or the first publication...
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...of her position, defendant-former wife had cited Germania National Bank v. Duncan, 62 Okla. 144, 161 P. 1077 (1916) and Graham v. Pepple, 129 Kan. 735, 284 P. 394 (1930) in which cases divorce actions had been instituted and neither of the wives attached their husband's real estate. The cou......
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...specific property is described and sought to be charged with payment of alimony. 54 C.J.S. Lis Pendens § 11, page 578. Graham v. Pepple, 129 Kan. 735, 284 P. 394; Rumsey v. Rumsey, 150 Kan. 49, 90 P.2d The record is barren of any showing of compliance or noncompliance with said sections, bu......