Moyer v. Nevison

• Citation: 55 P. 494,8 Kan.App. 234
• Decision Date: 01 December 1898
• Docket Number: 479
• Court: Kansas Court of Appeals
• Parties: A. N. MOYER v. SAMUEL A. RIGGS AND W. W. NEVISON, Partners as Riggs & Nevison, AND SARAH E. JOHNSON

55 P. 494

8 Kan.App. 234

A. N. MOYER v. SAMUEL A. RIGGS AND W. W. NEVISON, Partners as Riggs & Nevison, AND SARAH E. JOHNSON

No. 479

Court of Appeals of Kansas, Northern Department

December 1, 1898

Opinion Filed December 15, 1898.

Error from Wyandotte court of common pleas; W. G. HOLT, judge. Reversed.

Judgment reversed.

Hutchings & Keplinger, for plaintiff in error.

Morse & Morse, for defendants in error.

OPINION

MAHAN, P. J.:

This was an action by Riggs & Nevison against Moyer and Johnson, in the nature of a creditor's bill, under the provisions of section 501 of the code. There was a general finding for the plaintiffs, and a judgment that Moyer pay to the plaintiffs sufficient of the money in his hands belonging to Johnson to satisfy the plaintiffs' judgment against her. The judgment in this case was rendered in the absence of the defendants. Subsequently there were two motions on behalf of Moyer to set aside the judgment. The first motion was on the grounds: (1) That the trial was had when the case did not stand for trial; (2) that the issues had not been joined in the case; (3) that the plaintiff was not entitled to judgment on the pleadings; and (4) that the judgment appears to be void on its face. The second motion is on the grounds: (1) That the petition states no cause of action; (2) that the answer contained new matter constituting a full defense to the claim set up in the petition and was not replied to, and the defendants did not waive a reply or assent to a trial without one; (3) because of mistake and omissions of the clerk in setting the case down in the trial docket at a time when the issues had not been joined, and because the judgment was rendered in the case as thus set for trial without the knowledge of the defendant or notice to him; (4) because on the face of the petition there is no cause of action stated against him; (5) because on the face of the answer not replied to the plaintiff was not entitled to any relief; and (6) because the judgment was void on its face. These motions were both denied, and the rulings thereon constitute the first and second assignments of error in the brief. The third assignment of error is that the judgment was for the plaintiff when it should have been for the defendant.

The plaintiff in error contends, under the first assignment of error, that the petition states no cause of action, in that it fails to allege that at the time the suit was commenced Moyer had money of his codefendant, Johnson, in his possession or under his control, and also because it does not state either that execution was issued on the judgment and returned "no property," or that the defendant Johnson was insolvent and had no property subject to execution. Is it necessary, in an action to recover assets not within the reach of an execution, to allege the issuance of an...