Mawhinney v. Doane

• Decision Date: 09 February 1889
• Parties: FRANK MAWHINNEY et al v. ABNER H. DOANE et al
• Court: Kansas Supreme Court

20 P. 488

40 Kan. 681

FRANK MAWHINNEY et al v. ABNER H. DOANE et al

Supreme Court of Kansas

February 9, 1889

Motion for Rehearing.

THE facts sufficiently appear in Mawhinney v. Doane, supra, and in the opinion on the motion for a rehearing, filed at the session of the court in February, 1889.

Motion for rehearing overruled.

W. A S. Bird, for plaintiffs in error.

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

OPINION

PER CURIAM.

An opinion was filed in this case at the February sitting, 1888 subsequently a motion for a rehearing was presented therefore the questions involved have been again discussed and considered. The plaintiff in error Frank Mawhinney, sues in his own right and as statutory guardian of Nettie M Bragunier and Nina F. Bragunier. He declares on a judgment that was rendered against the defendants in error Doane and Rice, and one Jeremiah Bragunier, in the district court of Shawnee county, on the 30th day of January, 1879. An execution was issued on this judgment on the 3d day of September, 1879, returned with a credit thereon of $ 502. Another execution was issued on the 6th day of September, 1879, and another on the 11th day of December, 1879; both returned unsatisfied. On the 9th day of November, 1879, Jeremiah Bragunier, one of the judgment debtors, died. On the 26th day of November, 1879, David Shellabarger, the owner of the judgment, assigned it for a consideration to one Sarah F. Bragunier. Frank Mawhinney married Sarah F. Bragunier, the purchaser of the judgment, on the 10th day of March, 1881. On the 31st day of January, 1882, and on the 23d day of February, 1882, other executions were issued on the judgment, and returned unsatisfied. On the 13th day of April, 1882, Sarah F. Mawhinney, the owner of the judgment, died, leaving Frank Mawhinney, her husband, and Nettie M. and Nina F. Bragunier, her daughters, as her heirs-at-law. On the 17th day of April, 1882, Frank Mawhinney was duly appointed administrator of the estate of Sarah F. Mawhinney, and on the 20th day of April, 1885, the estate was fully settled, and Frank Mawhinney discharged from the administration. On the 17th day of April, Frank Mawhinney was duly appointed by the probate court of Shawnee county guardian of the persons and estates of Nettie M. and Nina F. Bragunier. In his petition he prays a judgment for the amount of the original judgment, with interest and costs, and alleges that the judgment is still in full force and unsatisfied. Among other defenses the answer alleged that by the death of Shellabarger, who owned the judgment originally, and the death of Mr. Bragunier, to whom it was assigned by Shellabarger, and by reason of the fact that it has never been revived in the name of the administrator of the estates of Shellabarger or Bragunier or Mawhinney within one year after the death of either or both of them, the judgment had become dormant, and no action could be maintained on it. A demurrer was interposed to this defense, and it was overruled, and the case brought here.

We held in the original opinion that the judgment had become dormant because of the death of Sarah F. Mawhinney, to whom Shellabarger, the judgment creditor, had assigned it. This...