Pattison v. The Kansas State Bank
| Decision Date | 10 July 1926 |
| Docket Number | 26,785 |
| Citation | 247 P. 643,121 Kan. 471 |
| Parties | E. H. PATTISON, Appellee, v. THE KANSAS STATE BANK et al., Appellants |
| Court | Kansas Supreme Court |
Decided July, 1926.
Appeal from Butler district court, division No. 2; GEORGE J. BENSON judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. JUDGMENTS--Collateral Attack--Errors in Decision. A judgment rendered upon default, where the defendants were duly summoned and the court had acquired jurisdiction of the parties and the subject matter, is binding upon them, and errors, if any were committed, in its decision as to the sufficiency of the pleadings or in its findings upon the facts, must be corrected upon appeal and are not open to collateral review.
2. SAME--Collateral Attack--Evidence--Admissibility. In a collateral attack upon a judgment, an allegation in the petition that plaintiff was the owner of land, where possession thereof was an essential, warranted the admission of evidence that the plaintiff held possession of it.
J. M. Pleasant, of El Dorado, for the appellants.
E. W. Grant, of El Dorado, for the appellee.
This was an attack upon a judgment on the ground that it was void. It appears that E. H. Pattison obtained the judgment on October 18, 1923, enjoining the Kansas State Bank and the sheriff from selling a tract of land which he held under a tax title and of which he had possession through a tenant. In the petition for the injunction it was alleged that Pattison had procured a valid and legal tax deed under legal proceedings, and that no creditor of the owner of the legal title had a cause of action to defeat the action or prevent the premises from being liable therefor; that his ownership under the tax deed was paramount and not subject to any claim of the defendant. It was alleged that the bank was proposing to sell the land under an attachment process in violation of his rights and without authority of law. A summons was served upon the defendants, who made default, and the matter was presented to the court. It was found on the pleadings and testimony that the plaintiff was the owner of the land, that it was not subject to the claims of the defendants, and thereupon a permanent injunction was granted. On January 30, 1925, a year and three months after the rendition of the judgment, a receiver for the Kansas State Bank filed a motion asking that the judgment and injunction be vacated and held for naught on the ground that the pleadings failed to state a cause of action against the defendants, and recited facts which show that the judgment was void. The petition contained a copy of the tax deed, and it is contended that on its face it appeared to be void for the reason that the acknowledgment thereof did not show the name of the officer and was not acknowledged as required by law. The sale on which the tax deed was based was to begin on September 1, but was not actually made until October 28, fifty-six days too late; further, that it recited a resolution of the board of county commissioners made prior to October 28, adopting the provisions of a certain act, and showed no authority for sale at that time, and based on these alleged defects it is sad that the petition alleged no cause of action and therefore the judgment should be set aside.
On the other side it is contended that the receiver showed no interest which entitled him to attack the judgment, that even if the petition was defective the judgment of the court was not void because the court had jurisdiction of the parties and the subject matter, and cannot be set aside in this collateral way even if the petition was subject to attack by demurrer.
The motion of the defendants is a collateral attack upon a final judgment. In the action in which the judgment was rendered, the bank and the sheriff were duly served with process, but did not appear or answer, nor did they appeal from the judgment, and the time for appeal has long since passed. Although they did not assert any rights they may have had, or contest the claims of plaintiff, a judgment by default is now as binding upon the defendants as if they had appeared and contested with plaintiff at every step in the trial. ( Miller v. Miller, 107 Kan. 505, 192 P. 747, and cases cited, 3 Freeman on Judgments, 5th ed., 2690-2692.)
Passing over the objection of plaintiff that the receiver had no right to attack the judgment, and assuming that he had an interest, it must be held...
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