Peterson v. Warner
| Decision Date | 15 November 1897 |
| Docket Number | 259 |
| Citation | 50 P. 1091,6 Kan.App. 298 |
| Parties | E. M. PETERSON et al. v. A. S. WARNER et al |
| Court | Kansas Court of Appeals |
November 15, 1897,
Error from Marshall District Court. Hon. R. B. Spilman, Judge. Affirmed.
Judgment affirmed.
Gregg & Gregg and E. A. Berry, for plaintiffs in error.
B Giltner and E. Hutchinson, for defendants in error.
In this action the plaintiff in error Peterson sought to charge Warner with the value of certain personal property which he alleged in his petition was fraudulently transferred by one Mason, deceased, with the intent to hinder, delay and defraud the creditors of Mason. The plaintiff alleges that at the time of Mason's death and prior thereto he was indebted to plaintiff; that Mason had no property in his possession at the time of his death from which his debts could be satisfied, unless this fraudulent sale was set aside and the value of this property was appropriated thereto. The other plaintiffs in error, Hampton, Heleker Brothers, Rosencrans and Davis, it is alleged, were likewise creditors of Mason and had claims against his estate. By their answer they alleged the same facts as are alleged in the petition. The defendant Irvine is joined as the administrator of Mason.
To the petition the defendant Warner answered, first, by a general denial; second, that the property was transferred to him by Mason in his lifetime in payment of a debt due to him from Mason; third, that in a former action brought by the same plaintiff against the same defendants, the plaintiff had alleged in his petition that certain real estate which he then sought to have appropriated to the payment of these same debts was the only property of the deceased, Mason, which could be reached or appropriated to the payment of these debts; that this allegation worked an estoppel against the plaintiff from now alleging that this personal property was subject to the payment of the debts of Mason; that, having so solemnly declared in his petition in that case between the same parties that the land was the only property of Mason, he would not now be permitted to say that the personal property was subject to such appropriation; that by such allegation he ratified the transaction as to the personal property.
The fourth defense made in the answer is the plea of former adjudication of the same facts in controversy in this case. It avers the bringing of the suit by the same plaintiff against the same defendants, except that the wife of Warner was made a party defendant in the first case, she being in possession of the land at the time with her husband, they occupying the same as a homestead; that the petition charged in that case that the transfer of the land to the defendant was fraudulent, and intended by Mason and accepted by Warner with the intent and purpose to hinder, delay and defraud the creditors of Mason. It further alleges that the transfer of the real estate mentioned in said petition, was a part of the same transaction in which the personal property was transferred, and that the consideration therefor was the same; that it was one single entire transaction; that it was so alleged by the defendant in the former suit and so determined by the court; that the same questions involved in that case are involved in this -- that is, that the validity of the transfer of this property, both land and personal property, was there decided by the court upon issues joined that said transfer was adjudged valid and free from taint of fraud, and was made for the purpose of discharging said indebtedness from Mason to the defendant. The answer had attached to it and made a part of it by reference, the petition, answer, proceedings, findings of fact, and judgment of the court in the former case.
To the third and fourth defenses contained in this answer the plaintiff demurred, on the ground that they did not state facts sufficient to constitute a defense to the cause of action set out in the petition. The court overruled the demurrer as to both counts. The plaintiff elected to stand thereon, and judgment was rendered accordingly for costs for the defendant Warner against the plaintiff.
Warner made a reply to the answers of the other creditors, setting forth the same facts. These creditors, who are now plaintiffs in error and were defendants below, demurred to the third and fourth counts of the reply; their demurrers were overruled and they elected to stand upon their demurrers, and judgment was rendered against them for costs in favor of the defendant Warner.
One questions presented for decision is: Did this third count of the answer of the defendant Warner to the plaintiff's petition and his replies to the other defendants' answers, state facts sufficient to constitute a defense to the matters alleged in the plaintiff's petition and to the matters alleged in the co-defendant's answers, which were identical?
We cannot see upon what legal principle ...
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Reno v. Beckett
...(1939); Kington v. Ewart, 100 Kan. 49, 164 P. 141 (1917); First Nat'l Bank v. Duncan, 80 Kan. 196, 101 P. 992 (1909); Peterson v. Warner, 6 Kan.App. 298, 50 P. 1091 (1897). Appellants assert that a contrary view is expressed in Wilson v. Stephenson, 143 Kan. 91, 53 P.2d 874 (1936). In that ......
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Bray v. Bayles
...(1939); Kington v. Ewart, 100 Kan. 49, 164 P. 141 (1917); First Nat'l Bank v. Duncan, 80 Kan. 196, 101 P. 992 (1909); Peterson v. Warner, 6 Kan.App. 298, 50 P. 1091 (1897)." Here, neither plaintiffs nor defendants were actual parties to the previous proceedings. Furthermore, as mentioned ea......
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Mason v. Ruby
... ... former litigation." (23 Cyc., Law & Procedure, 1112; ... Aldrich v. Stephens, 49 Cal. 676; Peterson v ... Warner, 6 Kan. App. 298, 50 P. 1091; Neppach v ... Jones, 28 Ore. 286, 39 P. 999, 42 P. 519; Girardin ... v. Dean, 49 Tex. 243; Hanna v ... ...
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Lyon v. U.S. Fidelity & Guaranty Co.
... ... against him, and to be considered by the jury in fixing the ... amount of his damages. Peterson v. Warner, 6 Kan ... App. 298, 50 P. 1091; Thompson v. Currier, 70 N.H ... 259, 47 A. 76; Posey v. Hanson, 10 D. C. App. 496; ... Hall v ... ...