Head v. Daniels

• Decision Date: 10 December 1887
• Citation: 38 Kan. 1,15 P. 911
• Parties: L. W. HEAD v. A. T. DANIELS, et al
• Court: Kansas Supreme Court

15 P. 911

38 Kan. 1

L. W. HEAD v. A. T. DANIELS, et al

Supreme Court of Kansas

December 10, 1887

Error from Shawnee District Court.

EJECTMENT by Head against Daniels and Ryan. Trial by the court, and judgment for defendants, on December 28, 1885. The plaintiff brings the case here. The facts are substantially stated in the opinion.

Judgment affirmed.

Waters & Chase, and E. F. Hilton, for plaintiff in error.

J. W Campbell, C. M. Foster, and A. Bergen, for defendants in error.

VALENTINE J. HORTON, C. J.:

Concurring. JOHNSTON, J.:

Not sitting, having been of counsel in the court below.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought by L. W. Head, on May 12, 1883, in the district court of Shawnee county, against A. T. Daniels and A. J. Ryan, to recover certain real estate situated in said county. The case was tried before the court without a jury, and on December 28, 1885, judgment was rendered in favor of the defendants and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court.

The principal facts, stated briefly, are substantially as follows: The land in controversy belonged originally to Mary E. Denton; the plaintiff claims under her by virtue of a quitclaim deed, and the defendants claim under her by virtue of a sheriff's deed executed to A. T. Daniels; together with other facts connected therewith. The sheriff's deed was executed and recorded more than a year before the quitclaim deed was executed. The facts upon which the sheriff's deed is founded are substantially as follows: On April 6, 1874, Newton Maxwell recovered a judgment in the district court of Osage county, against the Osage Coal & Mining Company, for $ 1,144, with interest and costs. On September 26, 1874, an execution was issued on such judgment, and was returned in proper time, not satisfied. On September 26, 1879, another execution was issued on such judgment, and it also was returned in proper time, not satisfied. On January 28, 1881, Maxwell filed a petition in the district court of Shawnee county, ostensibly for the purpose of commencing an action against Charles Rath, Mary E. Denton, and others, to recover the amount of the aforesaid judgment, and alleged therein, among other things, that the Osage Coal & Mining Company was a corporation, and that the defendants were stockholders therein. Service of summons was made personally upon Rath, and was made by publication upon Mrs. Denton, but no service of summons of any kind was ever made upon any one of the other persons named in the petition; nor was any summons issued against any one of them; nor did any one of them ever appear in the case. Charles Rath appeared, but the action was afterward dismissed as to him, and thereafter it was prosecuted only as an action against Mrs. Denton. On June 7, 1881, an order of attachment was issued in the case against Mrs. Denton, and on June 8, 1881, it was levied upon the property in controversy, and service of summons was then made upon Mrs. Denton by publication, the first publication being on June 10, 1881. She made no appearance in the case. On October 4, 1881, judgment was rendered in the case against her. On December 6, 1881, an order of sale was issued on such judgment, and placed in the hands of W. D. Disbrow, who was then the sheriff of the county. He immediately gave notice that the property would be sold on January 17, 1882. His term of office expired on January 15, 1882, and H. E. Bush became sheriff. On January 17, 1882, Disbrow, as sheriff, and in the manner prescribed by law, sold the property to A. T. Daniels for $ 1,281 cash, and on the same day the sale was confirmed by the court, and said "sheriff" was ordered to make a deed for the property to the purchaser; and on January 18, 1882, Disbrow, in pursuance of such order, and as sheriff of the county, executed such deed, which is the sheriff's deed under which the defendants now claim. It is regular in form, and was recorded on the same day on which it was executed. Daniels immediately took the possession of the property under this deed, and has remained in the possession thereof ever since. From the proceeds of said sale, Maxwell's judgment was paid, and the surplus of the proceeds, to wit, $ 183.15, was paid to somebody, but whether to Mrs. Denton or not, is not shown; but it is shown that it was not paid to Daniels, or to his attorneys. The quitclaim deed from Mrs. Denton to the plaintiff was executed on May 5, 1883, and was recorded on May 12, 1883.

The first ground for reversal urged by the plaintiff is, that the judgment rendered in favor of Maxwell and against Mrs. Denton is void, and this claim is urged upon the further claim that the petition in the action of Maxwell against Mrs. Denton did not state facts sufficient to constitute a cause of action, and this claim is urged upon the following grounds: First, the petition shows upon its face, and affirmatively, that Maxwell's cause of action was barred by a three-years statute of limitations. Second, such petition did not allege, as is required by § 32 of the act relating to corporations, that "there cannot be found any property whereon to levy such execution."

I. It is believed that no decision can be found wherein it is held that a judgment is void merely because the pleading upon which the judgment is based seems to show upon its face that the action was barred by some statute of limitations. Certainly no such decision has ever been made by the supreme court of Kansas. In Kansas it has been held that where the petition or bill of particulars in a justice's court shows upon its face that the cause of action is barred by some statute of limitations, such petition or bill of particulars will be held to be insufficient, provided the question of the statute of limitations is specifically raised in the trial court. (Zane v. Zane, 5 Kan. 134.) But courts do not hold that a cause of action is barred by a statute of limitations, unless the question has been raised in some manner before judgment. There are so many exceptions which will take a cause of action out of the statute, that the courts will presume, unless the question is specifically raised before judgment, that the cause of action is not barred. Besides, the moral obligation to pay a debt after it is legally barred by some statute of limitations is as binding upon the debtor as it was before such debt was so barred; and hence it would seem proper, where the question of statutory bar has not been raised in the trial court and before judgment, to consider it as having been waived. It was shown in the case of Maxwell against Mrs. Denton that she was a non-resident of the state of Kansas, and therefore in all probability no statute of limitations ever even commenced to run in her favor, and in such a case it would have been futile for her to have interposed the defense of any such statute. But what statute could she rely on? What statute if any, could have commenced to run in her favor? A two-years statute, or a three-years statute, or a five-years statute, or some other statute? And when did such statute commence to run? When does a cause of action accrue against a stockholder in a corporation? Is it when the cause of action first accrues against the corporation itself? or when the judgment thereon is rendered against the corporation? or when the first execution is returned unsatisfied? or when some subsequent execution is returned unsatisfied? or may the action be brought against a stockholder at any time while the judgment against the corporation is in force? All these questions are judicial in their character, and none of them has ever been determined by this court. Mere defects in a petition do not render the judgment subsequently rendered upon it void. Even a petition which might be held to be insufficient, if challenged by a demurrer, or in some other manner before judgment, might in many cases be held to be sufficient to sustain a judgment subsequently rendered upon it, where the judgment is attacked only indirectly and collaterally. If the petition sets forth facts sufficient to challenge the attention of the court with regard to its merits or authorize the court to deliberate with respect thereto, then the judgment subsequently rendered upon it is not void, but at most is only voidable, and it cannot even then be held to be voidable except when it is attacked directly and in a direct proceeding. (Greer v. Adams, 6 Kan. 203; Rowe v. Palmer, 29 id. 337; and cases hereafter cited.)

II. The petition in the action of Maxwell against Mrs. Denton alleged, among other things, "that both of the said executions remain wholly unsatisfied, by reason that there cannot be found any property belonging to said corporation whereon to levy." Also, the returns of the sheriff on the executions were attached to and made a part of the petition, and both of such returns show that no property could be found whereon to levy. This, we think, sufficiently answers the point made by the plaintiff, that the petition does not allege that "there cannot be found any property whereon to levy such executions."

III. The next ground for reversal, numbered "second" in the plaintiff's brief, is, that the publication notice in the case of Maxwell against Mrs. Denton is not sufficient and this for the reason that the notice does not give the names of all the defendants in the action. The notice, in its title, gives the names of the parties as follows: "Newton Maxwell, plaintiff, v. Charles Ruth, Mary E. Denton, et al., defendants." There were really no defendants in the action except Charles Rath and Mrs. Denton, for no service of summons upon the other persons whose names are found in the petition was ever made, and the...