McGill v. Sutton

• Decision Date: 06 June 1903
• Docket Number: 13,149
• Citation: 72 P. 853,67 Kan. 234
• Parties: HENRY MCGILL et al. v. MILTON SUTTON et al
• Court: Kansas Supreme Court

72 P. 853

67 Kan. 234

HENRY MCGILL et al. v. MILTON SUTTON et al

No. 13,149

Supreme Court of Kansas

June 6, 1903

Decided January, 1903.

Error from Jackson district court; MARSHALL GEPHART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION--Necessary Parties. When an action is brought by one of several judgment debtors, jointly liable to restrain the sale of a tract of land owned by him, seized in execution, upon the ground that such land is not liable to execution in satisfaction of the judgment, the other judgment debtors are not necessary parties to the action.

2. HOMESTEAD AND EXEMPTIONS--Finding not Disturbed. Whether the removal of a family from the homestead is for a temporary purpose, with the intention of returning to it as a home, or an abandonment of the homestead by the family, is a question of fact, the determination of which, upon conflicting oral testimony, will not be disturbed by this court.

Crane & Woodburn Bros., J. A. Rokes, J. H. Keller, and Keeler & Hite, for plaintiffs in error.

Hayden & Hayden, and I. T. Price, for defendants in error.

POLLOCK J. All the Justices concurring.

OPINION

POLLOCK, J.:

This action was brought by Milton Sutton and wife to restrain the sale of an eighty-acre tract of land levied on under an execution issued on a judgment in favor of plaintiffs in error and against Milton Sutton, F. W. Smith, M. G. Farley, I. A. Collins, J. H. Hannam, G. W. Hannam, and J. P. Brownlee. Among other grounds alleged, upon which the injunction was procured, were that the property seized belonged to the wife, Mary Sutton, and that it was the homestead of plaintiffs. A jury was called to advise the court on questions of fact. At the conclusion of the evidence the homestead character of the property alone was submitted to the jury, and in response to special questions it found the property to be the homestead of plaintiffs. This finding was approved by the court and the temporary injunction theretofore procured was made perpetual. Defendants below bring error.

It is first contended that the other judgment debtors of Milton Sutton were necessary parties to this action. This claim is without merit. The object of the action was to restrain the sale of a particular tract of land owned by plaintiffs upon the ground that it was not subject to seizure and sale in satisfaction of the judgment. In such case the owners of the property alone are necessary parties plaintiff and they may institute and maintain such action. In Merriman v. Walton, 105 Cal. 403, 38 P. 1108, 30 L. R. A. 786, 45 Am. St. Rep. 50, it was held:

"A codefendant against whom the judgment was rendered in the justice's court need not be a party to an action to restrain the judgment so far only as affects the plaintiff and his property, the judgment against the codefendant being left in full effect, to be enforced at any time."

In the opinion it was said:

"The objection that the codefendant of the plaintiff is not a party to this action is without merit. The judgment in the justice's court is restrained only so far as it affects the plaintiff herein and his property, leaving the judgment against his codefendant in full effect, to be enforced at any time."

While we do not find the exact question here presented determined by this court, yet the practice followed in this case was permitted by this court in Allen v. Dodson, Sheriff, 39 Kan. 220, 17 P. 667, and Ard v. Pratt, 61 id. 775, 60 P. 1048. See, also, Ingraham v. Dyer, 125 Mo. 491, 28 S.W. 840.

One of the grounds alleged for restraining the enforcement of the judgment against the property in question was that it was purchased, in part, from money furnished by the wife out of her separate estate. In support of this claim plaintiffs were permitted to show that a portion of the purchase-money had been paid out of the private estate of the wife under an oral agreement with her husband as to the ownership of the property. It is contended that this was error. An examination of the record shows that the evidence thus produced on behalf of plaintiffs was insufficient to authorize an order or judgment restraining the sale of the property, and such evidence should, on motion, have been withdrawn from the...