Murphy Mortgage Co. v. Epp

• Decision Date: 10 February 1917
• Docket Number: 20568
• Citation: 99 Kan. 706,162 P. 1170
• Parties: MURPHY MORTGAGE CO. v. EPP ET AL.
• Court: Kansas Supreme Court

162 P. 1170

99 Kan. 706

MURPHY MORTGAGE CO. v. EPP ET AL.

No. 20568

Supreme Court of Kansas

February 10, 1917

Syllabus by the Court.

Before a nonresident defendant is entitled to have a judgment rendered against him on publication service set aside, he must make it appear to the satisfaction of the court that he did not have actual notice of the pendency of the action in time to make his defense. Code Civ. Proc. § 83 (Gen. St. 1909, § 5676).

Where a proceeding for the foreclosure of a mortgage and the sale of real estate thereunder is uncontested, it is merely an irregularity for the court, upon the unsworn statements of plaintiff’s attorney, to make a finding that the property is abandoned; and such irregularity is cured when, later, upon full and satisfactory sworn testimony, the court determines that its original finding was true and correct.

In a sale of real estate pursuant to a decree foreclosing a mortgage thereon, when it is satisfactorily shown that the premises are unoccupied, the residence vacant, its windows broken, and its foundation undermined, its arable land idle and untilled, its windmills dismantled, its barns and outbuildings collapsed and collapsing, and the property not in the possession of any bona fide caretaker, the statute limits the owner’s right of redemption to six months. Code Civ. Proc. § 476 (Gen. St. 1909, § 6071).

Appeal from District Court, Harvey County.

Action by the Murphy Mortgage Company against Cornelius C. Epp and others and O. H. Rhodenbaugh. From judgment for plaintiff the last–named defendant appeals. Affirmed.

Hoskinson & Hoskinson, of Garden City, for appellant.

Carr W. Taylor, of Hutchinson, for appellee.

OPINION

DAWSON, J.

This was an action to foreclose certain mortgages on a tract of land in Harvey county. One of the defendants, O. H. Rhodenbaugh, a citizen of Colorado, was served with summons by publication. The court decreed foreclosure, and this was followed by sale and confirmation. Rhodenbaugh filed a motion to set aside the judgment and that he should be permitted to defend against the answer and cross-petition of his codefendant, C. C. Epp. He also moved that the 6-month redemption period should be extended to 18 months on the ground that he was in possession of the premises. Affidavits pro and con were offered on these motions, and the trial court found certain facts:

"That the defendant O. H. Rhodenbaugh during the pendency of this action had actual notice thereof in time to appear in court and make his defense. That the finding and judgment made by the court at the time of the rendition of the judgment and in the order of confirmation of sale were made upon the evidence of the attorney for the plaintiff, and not under oath. That upon the evidence submitted at this time, the judge finds that at the time of the sale of the real estate by the sheriff of Harvey county, Kan., and at the time of the confirmation of the sale, the lands and tenements described and involved in the action had been abandoned, and were not occupied in good faith by the defendant O. H. Rhodenbaugh."

Certain conclusions of law were made:

"First: That the admission of evidence upon the question of abandonment of the lands and tenements not under oath was error, but did not render the finding of the court void.

Second. The evidence upon the present hearing sustaining the original finding, the finding will stand as made....

It is hereby considered, ordered, and adjudged that the two motions of the defendant O. H. Rhodenbaugh herein, to wit, his motion to vacate the judgment and grant a new trial herein and his motion to amend and modify the order of confirmation of sale, be, and they hereby are, overruled...."

Error is assigned on the rulings of the court on these motions.

Counsel for appellant insist that he was entitled as a matter of right to have the judgment against him vacated under section 596 of the Civil Code (Gen. St. 1909, § 6191), and that the trial court "evidently assumed that we were proceeding under section 77 of the old Code or 83 of the new Code [Gen St. 1909, § 5676] instead of the section (first) above quoted." Section 596 of the Code is a grant of power to the trial court to vacate or modify its judgments and orders. Before a litigant can invoke the exercise of the powers of the courts therein granted, he must bring himself within the provisions of the Code which cover his situation. Clearly these provisions are such as are prescribed in section 83 of the Code, and the important condition in appellant’s situation is that he must "make it appear to the satisfaction of ...