Jenal v. Felber

• Decision Date: 11 January 1908
• Docket Number: 15,231
• Citation: 77 Kan. 771,95 P. 403
• Parties: C. D. JENAL et al. v. JOHN H. FELBER et al
• Court: Kansas Supreme Court

95 P. 403

77 Kan. 771

C. D. JENAL et al. v. JOHN H. FELBER et al

No. 15,231

Supreme Court of Kansas

January 11, 1908

Decided January, 1908.

Error from Neosho district court; LEANDER STILLWELL, judge. Opinion filed April 11, 1908. Dismissed.

Motion to dismiss allowed.

J. L Denison, and C. S. Denison, for plaintiffs in error.

H. P Farrelly, T. R. Evans, and T. F. Morrison, for defendants in error.

OPINION

PER CURIAM.

This action was commenced by the plaintiffs in error in the district court of Neosho county on January 1, 1906, to recover damages and other relief on account of the fraudulent procurement of a conveyance of certain real estate. A general demurrer to the petition was sustained March 9, 1906, and a judgment in favor of the defendants in error was entered thereon. On April 26, 1906, George S Wilson, one of the successful defendants in that action, who was in possession of the real estate in question and claimed to be the owner thereof, commenced a suit in the same court to quiet his title to the land. The plaintiffs in error were made parties defendant, and they filed an answer and cross-petition therein, which contained the same averments that were set out in their petition filed January 1, 1906, as before stated. On August 2, 1906, a reply to this answer and cross-petition was filed, which set up the judgment in the former case as a bar, alleging that it had not been reversed, vacated or modified, but had become final. On October 22, 1906, the petition in error in this case was filed to obtain a reversal of that judgment. On December 12, 1906, the suit to quiet title was tried in the district court, and the plaintiff therein, George S. Wilson, recovered a decree against the plaintiffs in error, which has become final, no proceedings having been taken to have the same reversed.

Upon these facts the defendants in error have filed a motion in this case asking for a dismissal thereof. It is urged by them that all questions involved were finally decided in the suit to quiet title, and that nothing remains to be determined. More than a year having passed since the judgment was rendered, no proceedings in error can be had in the future.

This court has frequently held that it cannot consider and decide questions when it appears that any judgment it might render would be unavailing. (Ziegler v. Hyde, 45 Kan. 226, 25 P. 568; Ellis v. Whitaker, 62 Kan. 582, 64 P. 62; Parsons v. Tetirick, 90 Kan. 21, 64 P. 1028; Knight v. Hirbour , 64 Kan. 563, 67 P. 1104; Crouse v. Nixon, 65 Kan. 843, 70 P. 885; Waters v. Garvin, 67 Kan. 855, 73 P. 902; Stibbens v. Telegraph Co., 69 Kan. 845, 76 P. 1130.) In the last-named case it was said:

"The duty of the court is to determine real controversies and to give judgments that are effective. It is not warranted in considering and deciding hypothetic questions or abstract propositions, or in laying down rules of law which cannot affect the matter in controversy between the parties." (Page 845.)

In this case all the questions presented have been finally determined by a court of...