Gurney v. Steffens

• Decision Date: 11 January 1896
• Docket Number: 7958
• Citation: 43 P. 241,56 Kan. 295
• Parties: DAVID E. GURNEY v. JOHN STEFFENS
• Court: Kansas Supreme Court

43 P. 241

56 Kan. 295

DAVID E. GURNEY v. JOHN STEFFENS

No. 7958

Supreme Court of Kansas

January 11, 1896

Decided January, 1896.

Error from Wyandotte District Court.

ACTION by David E. Gurney against John Steffens. From an order postponing the hearing of a motion the plaintiff brings error. The opinion, filed January 11, 1896, states the case.

Judgment affirmed.

Hutchings & Keplinger, for plaintiff in error.

McGrew Watson & Watson, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

The sole question in this case is whether or not the court erred in granting a postponement of the hearing of a motion. On April 11, 1891, the plaintiff recovered a judgment in said court against the Kansas City Radiator and Iron Foundry Company, a corporation, for $ 37,770.77. Execution having been issued and returned unsatisfied, the plaintiff, on June 23, 1891, filed his motion for execution against the defendant as a stockholder of said corporation. On July 25, 1891, the defendant filed an answer to said motion, alleging, among other things, that said judgment was fraudulent and void, and upon his application the hearing was postponed until September 21, 1891, being the first day of September term. On August 10, 1891, the defendant and 13 others filed a petition alleging that they had been proceeded against severally as stockholders by motion, and asking that said judgment be vacated and set aside as to them, and that further proceedings upon said several motions be enjoined; and, the district judge being absent from the county, application was made to the probate judge for a temporary injunction, which was granted on the giving of an undertaking in the sum of $ 1,000 conditioned as required by law. On September 21, 1891, the motion of the plaintiff for leave to issue execution against the defendant came on to be heard, but the defendant objected to further proceedings thereon, and asked a postponement until the dissolution of said temporary injunction; and after the hearing of the evidence upon said objection, the court ordered that the hearing of said motion be postponed until such time as further orders should be made in said injunction proceedings, to which ruling the plaintiff excepted, and this proceeding in error is prosecuted to reverse said order of the trial court.

It is contended on the part of the plaintiff that this order of postponement was an unwarrantable interference with his right to proceed upon motion as authorized by the statute; that the petition in the injunction...