Kingsley v. Bagby

• Decision Date: 01 September 1895
• Docket Number: 30
• Citation: 2 Kan.App. 23,41 P. 991
• Parties: W. J. P. KINGSLEY v. E. A. BAGBY
• Court: Kansas Court of Appeals

41 P. 991

2 Kan.App. 23

W. J. P. KINGSLEY v. E. A. BAGBY

No. 30

Court of Appeals of Kansas, Southern Department, Western Division

September 1, 1895

Opinion Filed October 1, 1895.

MEMORANDUM.--Error from. Finney district court; A. J. ABBOTT judge. Action in foreclosure by W. J. P. Kingsley against John A. Stevens, E. A. Bagby, and others. Judgment for the defendant E. A. Bagby, awarding him first lien. The plaintiff brings the case to this court. Affirmed.

The statement of the case, as made by DENNISON, J., is as follows:

W. J P. KINGSLEY was the owner of a mortgage executed February 22 1888, by John A. Stevens and wife, upon certain real estate in Finney county, Kansas. E. A. Bagby obtained a judgment in the district court of Finney county, Kansas, against John A. Stevens et al. on March 28, 1888. Said Stevens was the owner of said real estate in fee simple on each of the dates above mentioned. The regular January term of the district court of Finney county convened January 3, 1888, and on February 18, 1888, adjourned to March 6, 1888, and continued in said adjourned session until said 28th day of March, 1888. An appeal was taken from said judgment, and a stay bond, provided for in the first subdivision of paragraph 4652 of the General Statutes of 1889, was given, which remained in force until July 9, 1891, at which time the judgment was affirmed. On April 23, 1890, Kingsley filed his petition in foreclosure against Stevens and others, among whom was the said E. A. Bagby, who was not personally served with summons, but was served by publication, and judgment was rendered by default on May 28, 1891. Bagby afterward, by stipulation with Kingsley, had the judgment as to him set aside, vacated, and reopened. Pleadings were filed and a trial had upon the question of priority of liens, and judgment was rendered in favor of Bagby on August 6, 1891. Kingsley brings the case here for review.

Judgment affirmed.

Milton Brown, for plaintiff in error.

H. F. Mason, for defendant in error.

DENNISON J. All the Judges concurring.

OPINION

DENNISON, J.:

In determining the priority of liens in this case, two questions are raised: First, was the lien of Bagby's judgment prior to the lien of Kingsley's mortgage? Second, if so, did Bagby lose his priority by failing to issue and levy an execution within one year from the rendition of his judgment? We must answer the first question in the affirmative, and the second in the negative.

"Judgments of courts of record of this state . . . shall be liens on the real estate of the debtor within the county in which the judgment is rendered from the first day of the term at which the judgment is rendered. . . ." (Gen. Stat. 1889, P 4515.)

Our statutes clearly classify terms of the district court into regular terms and special terms. The regular term is one which is held at the time fixed by statute, and a special term is one which is called by the judge according to paragraph 2086 of the General Statutes of 1889. Said paragraph 2086 also empowers the judges of the several district courts to hold such adjourned terms as they may deem necessary. An adjourned term is not an original term; the definition of the word "adjourned" precludes it. There must be either a regular or a special term in session, and the business of that term delayed, postponed, or put off until some more convenient time. This more convenient time would be an adjourned term, and a continuation of the regular or special term.

"An adjourned term is but a continuation--a part of the regular term. Giving the district court power to hold an adjourned term gives it power, not to adjourn from day to day, but to adjourn over a length of time over intervening obstacles to the holding of court. It seems to contemplate just such an exigency as the present, where the business in one county is incomplete, and yet the day fixed for the commencement of the term in another has arrived. The time of such adjournment is not restricted, unless it is deemed to be by the commencement of the succeeding regular term in that county." (The State v. Montgomery, 8 Kan. 351.) See, also, Sawyer v. Bryson, 10 Kan. 199; and In re Millington, 24 id. 224.

We therefore hold that on March 28, 1888, the regular January 1888, term of the district court in and for Finney county, Kansas, was in session, and a judgment rendered on that day would be a lien upon the real estate...