McDermott v. Halleck

• Decision Date: 05 July 1902
• Docket Number: 12,578
• Citation: 65 Kan. 403,69 P. 335
• Parties: JOHN MCDERMOTT v. P. H. HALLECK, as Receiver, et al
• Court: Kansas Supreme Court

69 P. 335

65 Kan. 403

JOHN MCDERMOTT v. P. H. HALLECK, as Receiver, et al

No. 12,578

Supreme Court of Kansas

July 5, 1902

Decided July, 1902.

Error from Dickinson district court; O. L. MOORE, judge.

Reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT -- When Motion for New Trial is Necessary. A new trial is a reexamination of an issue of fact. An issue of fact arises upon the pleadings. The pleadings upon which an issue of fact can arise under the code are the petition, answer, and reply. Hence, the filing and determination of a motion for a new trial of a contested question of fact not arising upon the pleadings, but arising upon a motion, is unnecessary to authorize this court to review the order made upon such hearing.

2. PROMISSORY NOTES -- Guaranty. The evidence examined and found insufficient to support the order made.

Valentine Godard & Valentine, for plaintiff in error.

T. E. Dewey, for defendant in error P. H. Halleck, receiver.

POLLOCK J. All the Justices concurring.

OPINION

POLLOCK, J.:

Thomas Kirby was the owner of a private bank, conducted under the name of the Thomas Kirby Bank. At the same time he acted as the agent of plaintiff in error, who resided at Jamestown, Pa., in the business of loaning money on real estate in Dickinson county. Among other loans by him made was one to F. R. Carpenter, in amount $ 2600, secured by a second mortgage on a half-section of land, the first mortgage being for $ 6000 to one Doctor Austin. Proceedings to foreclose these mortgages were instituted. Personal judgments were entered on the notes and a decree rendered foreclosing the mortgages and ordering sale of the property. After an order of sale had been issued, but before sale, Carpenter conveyed the property to Doctor Austin. Thereupon, the order of sale outstanding was. returned. Doctor Austin contracted to sell the real estate to Thomas Kirby for the amount of his judgment lien thereon, $ 7200, and Kirby contracted to sell the land to one Cooper, and took, as evidencing the purchase-price to be paid, eleven notes of $ 1000 each. Thereafter, Kirby paid to Doctor Austin the amount agreed on as the purchase-price and received a conveyance of the property. Cooper paid no part of the purchase-money notes.

Thereafter, plaintiff in error with his attorney came to Kansas to investigate the condition of his real-estate loans. For his interest in the property, Kirby indorsed and guaranteed payment of three of the $ 1000 notes received from Cooper on his contract of sale of the property to Cooper, and delivered them to plaintiff in error, who in return therefor delivered to Kirby the $ 2600 notes of Carpenter, then in judgment, and the second mortgage securing the same, then foreclosed. Thereafter, the Thomas Kirby Bank being insolvent, an action in liquidation was commenced by the the attorney-general of the state against the bank, and defendant in error Halleck was duly appointed receiver of the bank. The half-section of land mentioned came into the possession of the bank and was sold by the receiver for the sum of $ 5400. The three promissory notes of plaintiff in error, made by Cooper and indorsed and guaranteed by Kirby, were presented to the receiver for allowance as a demand against the trust in his hands, which allowance the receiver refused. Thereupon, plaintiff in error filed his motion in the original liquidation case for an order against the receiver, directing him to allow the notes as a claim against the estate in his hands as receiver, and for an order directing the receiver to pay on this claim in proportion to the amount paid on the demands of other creditors of the trust. To this motion there were attached as exhibits, and made part of the motion, copies of the notes and indorsements thereon. The receiver filed an answer to this motion, alleging want of consideration moving to Kirby or the bank from plaintiff in error for the indorsement and guaranty of payment of the notes. This motion came on for hearing before the court. The evidence of both parties was introduced and the matter taken under advisement by the court for future determination.

Afterward, in the absence of counsel for plaintiff in error, the court made findings from the evidence offered, and entered an order overruling the motion and denying the application for allowance. From this order the present proceeding in error is prosecuted. No motion for a new trial of the motion or application for allowance was made or determined in the court below.

Upon this record and the briefs and argument of counsel arise two questions for our determination: First, will the order of the trial court be reviewed here, in the absence of a motion for a new trial's having been filed in and ruled on by the trial court? Second, if so, was there such an entire want of consideration moving to Kirby for his indorsement and guaranty found on the notes as to relieve him and his estate from liability thereon?

The question of general importance in this case is, Will this court review the alleged errors arising upon the hearing and determination of this motion, in the absence of the filing and presentation of a motion for a new trial to the court below, for the purpose of affording that court an opportunity for the correction of such errors? As we shall presently see, this question has received consideration from the courts of other states having code provisions similar to our own, but we believe the precise question has not heretofore been before this court for determination. It has long been the settled rule of this court, firmly held, that errors occurring upon the trial cannot be considered or reviewed by this court unless a motion for a new trial, founded upon and including such errors, has been presented to and overruled by the trial court and exception saved. ( Decker v. House, 30 Kan. 614, 1 P. 584; Buettinger T. Hurley, 34 id. 585, 9 P. 197; Ritchie v. K. N. & D. Rly. Co., 55 id. 36, 39 P. 718.) Hence, if the hearing and determination of the motion filed by plaintiff in error was a trial, in contemplation of law, and as that word is used in and defined by the code, it is evident that any alleged error occurring at such trial cannot be reviewed or corrected in this present proceeding.

Was it a trial and judgment, or a hearing and order? The word "trial" is defined by the code, as follows:

"A trial is a judicial examination of the issues, whether of law or fact, in an action." (Civil Code, § 265; Gen. Stat. 1901, § 4712.)

The derivation and definition of the word issues are found in article 14 of the code (Gen. Stat. 1901, §§ 4708-4711):

"Issues arise on the pleadings, where a fact or conclusion of law is maintained by one party, and controverted by the other. They are of two kinds: First, of law; second, of fact." (Id. § 4708.) "An issue of law arises upon a demurrer to the petition, answer, or reply, or to some part thereof." (Id. § 4709.) "An issue of fact arises: First, upon a material allegation in the petition, controverted by the answer; or, second, upon new matter in the answer, controverted by the reply; or, third, upon new matter in the reply which shall be considered as controverted by the defendant without further pleading." (Id. § 4710.)

The word "pleadings," as used in section 261 (id. § 4708), is defined by section 84 of the code (id. § 4518) as follows:

"The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses."

By the provisions of section 85 of the code (id. § 4519), all prior rules as to pleadings in civil actions were expressly abolished. Section 86 (id. § 4520) limits and defines the only pleadings permissible by the code, as follows:

"The only pleadings allowed are: First, the petition by the plaintiff; second, the answer or demurrer by the defendant; third, the demurrer or reply by the plaintiff; fourth, the demurrer by the defendant to the reply of the plaintiff."

Section 87 (id. § 4521) prescribes what the petition must contain, as follows:

"The petition must contain: First, the name of the court and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word 'petition'; second, a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition; third, a demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed, the time from which interest is to be computed shall be also stated."

A new trial is provided for and defined by the code as follows:

"A new trial is a reexamination in the same court of an issue of fact,...