Gray v. Haish

• Decision Date: 01 December 1895
• Docket Number: 47
• Citation: 43 P. 293,2 Kan.App. 145
• Parties: HOWARD GRAY v. JACOB HAISH
• Court: Kansas Court of Appeals

43 P. 293

2 Kan.App. 145

HOWARD GRAY v. JACOB HAISH

No. 47

Court of Appeals of Kansas, Southern Department, Western Division

December 1, 1895

Opinion Filed January 17, 1896.

MEMORANDUM.-- Error from Stafford district court; ANSEL R CLARK, judge. Action brought by Howard Gray against Jacob Haish. The court sustained a motion of defendant, Haish, to open up and set aside a judgment formerly made, and from that decision plaintiff brings the case here. Dismissed. The opinion, filed January 17, 1896, states the case.

Case dismissed.

J. W Rose, Paul R. Nagle, and Mosely & Dixon, for plaintiff in error.

Whiteside & Gleason, for defendant in error.

DENNISON J. All the Judges concurring.

OPINION

DENNISON, J.:

This is an action brought by Howard Gray, as plaintiff, against Jacob Haish, a non-resident of the state of Kansas, as defendant. Service was made by publication, and judgment was rendered by default against said Haish. Said defendant, upon proper proceedings, procured the vacation of said judgment, and permission to answer instanter; whereupon said defendant filed his answer and cross-petition, and the cause was, on February 8, 1894, continued until the next term of the court. On March 1, 1894, the said plaintiff filed a motion asking the court to compel the said defendant to make his answer more definite and certain. At the May term of said court the cause was continued to the next term of court. No action was had on said motion at said May term. At the October term of said court the motion to make more definite and certain was overruled, and the plaintiff filed a reply to the answer of the defendant, leave of the court having first been obtained. At said October term, judgment was rendered against the said defendant in favor of said plaintiff. There was no appearance of said defendant at said October term of court. Thereafter, on February 5, 1895, said defendant filed a motion to vacate and set aside said judgment, for the following reasons, to wit:

"(1) Because of the rendition before the action stood regularly for trial, and without the presence or knowledge of defendant; (2) because the alleged judgment was taken in the absence of defendant, on the day plaintiff filed his reply to defendant's answer and cross-petition, viz., October 18, 1894, the last term before the present term of this court."

This motion was sustained by the court, upon condition that the said defendant, on or before April 1, 1895, pay all costs which had accrued in said action up to said time. The plaintiff duly excepted, and brings the case to this court for a review of the ruling of said court sustaining said motion to vacate and set aside said judgment.

The defendant in his brief raises a jurisdictional question which we will first consider. It is alleged that the ruling of the trial court by which it vacated and set aside a judgment alleged to have been rendered before the action regularly stood for trial is not such a ruling as is reviewable by this court, or appealable from the district court while the action is still pending therein. The jurisdiction of the supreme court is embraced in paragraph 4641 of the General Statutes of 1889. The jurisdiction of this court is embraced in section 9 of chapter 96 of the Session Laws of 1895. The question of authority to review such rulings as this is very fully discussed in McCulloch v. Dodge, 8 Kan. 476, and cases therein cited. The material difference between that case and the case at bar is that in that case the order set aside a judgment by default and permitted the defendant to answer, while in the case at bar the order set aside the judgment because it was rendered before the action regularly stood for trial. The plaintiff in error contends that this...