Kimble v. Short

• Decision Date: 01 December 1895
• Docket Number: 46
• Citation: 43 P. 317,2 Kan.App. 130
• Parties: J. W. KIMBLE et al. v. J. J. SHORT
• Court: Kansas Court of Appeals

43 P. 317

2 Kan.App. 130

J. W. KIMBLE et al. v. J. J. SHORT

No. 46

Court of Appeals of Kansas, Southern Department, Western Division

December 1, 1895

Opinion Filed January 17, 1896.

MEMORANDUM.--Error from Rice district court; H. W. GLEASON judge pro tem. Action of injunction by J. J. Short against J W. Kimble and H. B. Revel. Judgment for plaintiff. Defendants bring the case to this court. Affirmed. The opinion herein filed January 17, 1896, states the material facts.

Judgment affirmed.

Samuel Jones, and C. F. Foley, for plaintiffs in error.

J. W. Brinckerhoff, for defendant in error.

JOHNSON P. J. All the Judges concurring.

OPINION

JOHNSON, P. J.:

This suit was commenced by J. J. Short in the district court of Rice county against J. W. Kimble and H. B. Revel, to restrain them from enforcing a certain judgment rendered by H. B. Revel, a justice of the peace of Pioneer township, in Rice county, Kansas, on the 23d day of March, 1892, in a certain action before said H. B. Revel, justice of the peace, wherein J. W. Kimble was plaintiff and J. J. Short was defendant, and to set said judgment aside and hold the same for naught, and to allow the parties a trial of the matters involved in such action. The plaintiff below, in his amended petition alleges that H. B. Revel was on the 23d day of March, 1892, a justice of the peace of Pioneer township, in Rice county, Kansas, and that J. W. Kimble commenced an action before said justice of the peace against plaintiff below to recover $ 298, and such action was set for trial before the justice of the peace on March 23, 1892. Plaintiff below alleges that he was not indebted to J. W. Kimble at the time of the commencement of the action before H. B. Revel as justice of the peace, in the sum of $ 298, or in any other sum; that he then had and ever since has had a good, valid and meritorious defense to the pretended claim of J. W. Kimble; and he says that he prepared an answer in defense to the cause of action set forth by the plaintiff in his bill of particulars filed before said justice, and, on the return-day of said summons, at the hour required by said summons, he appeared before said justice, and filed his answer setting up a full and complete defense to the action then pending before such justice; that upon the filing of the answer, he stated to the justice of the peace and the plaintiff and plaintiff's attorney that he did not desire to have the case tried before the justice of the peace; that he intended to appeal the case to the district court on any judgment which might be rendered against him before said justice of the peace; whereupon said defendant and said justice, conspiring, confederating, and agreeing, and intending to cheat, wrong and defraud this plaintiff, and for the purpose of preventing him from having a fair trial, or any trial, and for the purpose of obtaining an unjust and unlawful judgment against him, did fraudulently, wrongfully and unlawfully state, by and through said justice of the peace, to this plaintiff that if he would confess judgment he could take an appeal to the district court. He further says, that he was then and there in said justice's court without counsel and without witnesses, and not expecting to try said case; that he is a farmer; that he was not at said time familiar with the rules of law regarding appeals from justice's court to the district court; that he relied upon and believed the statements of said justice so made to him touching his rights of appeal after a confession of judgment, and thereupon said that if that was right, and if that was the law, he supposed he would have to confess judgment, as he wanted to appeal to the district court. He further says, that the defendant Kimble, and his attorney, C. F. Foley, an attorney and counselor at law, were then and there present during the aforesaid conversation between the plaintiff and said justice, and that neither of them dissented from the legal proposition as stated by said justice of the peace, but that, on the other hand, very shortly thereafter the said counsel for said Kimble did draw and draft an appeal bond from the justice's to the district court, for the use of said plaintiff in taking his intended appeal, which he used.

He further says, that he did not, in the presence of said justice or elsewhere, state that he was indebted to said Kimble in the sum of $ 298, or in any other sum, and that he was not so indebted; that he did not intend that said Kimble should have final judgment against him for such sum or any other sum, but that what transpired as above set forth was done on his part for the sole and only purpose of getting said cause transferred to the district court for trial; but he says that the part taken therein by said justice of the peace, and assented to by said Kimble, was taken and assented to with a fraudulent purpose and design on their part to wrong and defraud this plaintiff, and prevent him from having any trial on the merits of said cause as tendered by the pleadings therein, and of obtaining an unlawful judgment against and an advantage over him; and he says that he then and there, for the purpose of effectuating and perfecting his said appeal, did sign and execute said appeal bond, and in the presence and with the knowledge of said justice of the peace, said Kimble, and his said attorney; and the plaintiff says that the said justice of the peace did thereafter make an entry of judgment in said case, and attaches a copy of said judgment to his petition. He further alleges that said justice, after the filing of the appeal bond, transmitted to the clerk of the district court a copy of the entry of judgment and the files and records of said case; and he also says that thereafter, at the April term of the district court of Rice county, the said Kimble, in pursuance of the fraudulent and unlawful design as aforesaid, and for the purpose of preventing plaintiff from having any trial on the merits of said action, and for the purpose of taking, holding and enforcing said judgment so fraudulently obtained, did move the district court to dismiss the appeal of plaintiff below, on the ground that, the record showing that the judgment was one made by confession, the same was not appealable, although said justice, Kimble and his counsel well knew that said J. J. Short fully intended and expected to appeal, and they had before said justice of the peace, at the time of the alleged confession of judgment, read plaintiff's answer, as had also said justice. He further alleges, that the district court did, upon Kimble's motion, and over the objection of plaintiff below, dismiss his attempted appeal; whereupon, he duly made a motion before the justice of the peace to vacate, set aside and hold for naught the alleged judgment by confession so wrongfully obtained, and to grant a new trial therein, which motion defendant Kimble, by his counsel, did oppose, and which the said justice, in pursuance of said fraudulent design, did overrule. He further alleges, that before the commencement of the action by Kimble before the justice of the peace, the said justice did act as agent and attorney in fact for said Kimble, and came to this plaintiff and presented said claim, which was thereafter sued on before said justice, and said justice urged this plaintiff to pay the same. He further alleges, that the judgment and costs of action were wrongfully, unlawfully and fraudulently obtained as against equity and good conscience, and were obtained by misrepresentation and fraud on the part of said defendants; that he relied, as he had a right to, upon the representations and statements made to him by the justice, and acquiesced in by said defendants and his counsel, touching his right to an appeal; that what he said and did before said justice of the peace in the way of a confession of judgment was said and done because he was misled by said justice, Kimble and his attorney as to what his rights were in the premises; and that he is not now and never was indebted to said Kimble in the sum represented by said judgment.

The petition of the plaintiff is duly verified. On the filing of the petition in the district court, and on proof that the judge of the district court was absent from the county, a temporary injunction was granted by the probate judge. A demurrer to the original petition was filed and sustained. The plaintiff below, by leave of court, amended his petition, and a demurrer was then filed to the amended petition, which was overruled by the court, and defendants below duly excepted to the judgment of the court overruling said demurrer, and this ruling of the court is the first error assigned by the plaintiffs in error.

The demurrer to the amended petition was a general one, for the reason that the amended petition wholly failed to state facts sufficient to constitute a cause of action against the defendants below and to entitle the plaintiff below to any relief. The amended petition charged Revel, the justice of the peace, and Kimble, the plaintiff in the suit before Revel, and Kimble's attorney, with conspiring to defraud the plaintiff below, and to obtain an undue advantage over him, and, by fraud, falsehood, and deceit, procuring the judgment by confession to be entered up by said justice against him; that said Revel, Kimble and his attorney well knew that he did not confess to be indebted to Kimble in any sum, but wholly denied any indebtedness, and at the same time filed with such justice a written answer denying specifically any indebtedness to Kimble, and attached to said answer a copy of a receipt in full, dated just 12 days before the commencement of said suit, signed by Kimble, acknowledging the receipt of $ 30 in full of all demands up to date; and Short,...