Morris v. Tracy

• Decision Date: 10 April 1897
• Docket Number: 9756
• Citation: 48 P. 571,58 Kan. 137
• Parties: WILLIAM C. MORRIS et al. v. IDA M. TRACY et al
• Court: Kansas Supreme Court

48 P. 571

58 Kan. 137

WILLIAM C. MORRIS et al. v. IDA M. TRACY et al

No. 9756

Supreme Court of Kansas

April 10, 1897

Decided January, 1897.

Error from Nemaha District Court. Hon. J. F. Thompson, Judge.

This was an action brought by Ida M. Tracy, as plaintiff, against William C. Morris, Dallas Morris and Emma H. Morris, to partition certain lands belonging to the heirs of George W Morris, deceased. The service was by publication. The land was described in the publication notice as "the southwest quarter, and the north half of the southeast quarter, of section six in township three of range twelve." The answer day was February 6, 1893. March 11 1893, the court entered an order directing partition among the parties to the suit. On the same day, an order was issued directing the sheriff to cause partition to be made by the commissioners named in the order of the court. This was returned on the thirteenth of March. The commissioners reported that partition could not be made without manifest injury, and appraised the southwest quarter of section six at thirty-two hundred dollars, and the north half of the southeast quarter of said section at twelve hundred dollars. On the next day, an order was made by the court directing a sale of the property; and a writ for that purpose was issued on the seventeenth of the same month. On April 25, the sheriff returned that he had sold the land to the defendant in error, John A. Gilchrist -- the southwest quarter for $ 2,150, and the north half of the southeast quarter for $ 800. On April 26, a motion to confirm the sale was filed by the plaintiffs' attorney. The next day, Dallas Morris appeared, specially, and moved to set aside the service of summons, on the ground that no valid cost bond had been given. This was the first appearance made in the case by any of the defendants. William C. Morris filed a motion to set aside the sale on various grounds, and in his motion offered to take at the appraisement the quarter-section appraised at thirty-two hundred dollars, and to take the whole of the land at forty-one hundred dollars. Emma Durham also filed a motion to set aside the service, alleging that she was a daughter and heir of George W. Morris, deceased; that she was married to one S. L. Durham prior to 1874, and that since her marriage she had always been known by the name of Emma Durham, and never, during that time, had been called Emma Morris, or Emma H. Morris. Testimony was taken on these motions, which were heard on the twenty-ninth of April. The court overruled all of them. Thereupon, on the same day, Emma Durham, still objecting to the jurisdiction of the court filed a motion to set aside the orders for partition of the land and directing its sale, on the grounds that no service of summons had been made on her and that no reasonable opportunity had been afforded the defendants to elect to take the land at the appraised value. She asked that these motions be heard and decided before the motion to confirm the sale should be passed upon. This the court refused to do, and an order was entered confirming the sale and directing the sheriff to make a deed conveying the land to the purchaser. Proper exceptions were saved to all these rulings. On August 14, 1893, William C. Morris and Dallas Morris filed further motions to set aside the judgment and orders in the case. On September 27, the motion of Emma Durham, filed before the confirmation of the...