Ross v. Noble

• Decision Date: 23 December 1897
• Docket Number: 271
• Citation: 51 P. 792,6 Kan.App. 361
• Parties: CAROLINE E. ROSS v. GEORGE M. NOBLE et al
• Court: Kansas Court of Appeals

51 P. 792

6 Kan.App. 361

CAROLINE E. ROSS v. GEORGE M. NOBLE et al

No. 271

Court of Appeals of Kansas, Northern Department, Central Division

December 23, 1897

December 23, 1897.

Error from Osborne District Court. Hon. Cyrus Heren, Judge. Reversed.

Judgment reversed and case remanded.

Edwin A. Austin, for plaintiff in error.

Fuller & Whitcomb, for defendants in error.

OPINION

MCELROY, J.

This action was brought by Caroline E. Ross against John M Marshall, Catherine Marshall, George M. Noble, S. G. Bailey the Kansas Loan and Trust Company, and the Trust Company of America, in the District Court of Osborne County. The petition set forth the execution and delivery, by John M Marshall and Catherine Marshall, of a certain note and interest coupons, and a mortgage securing the same, to E. M. Shelden, an agent of the Kansas Loan and Trust Company, and indorsement of the same to the plaintiff, and that the principal note and certain coupons were due and unpaid. This was the substance of the first nine counts. The tenth count avers equitable title in the plaintiff, the subsequent and inferior legal titles of Geo. M. Noble and S. G. Bailey, and that the Kansas Loan and Trust Company was trustee for the plaintiff and was in receipt and possession of the rents.

A stipulation was made and filed that the defendants should have twenty days additional in which to plead. Afterward, motions to set aside the service were filed and overruled. The defendants made no further appearance in the case. The plaintiff took judgment as upon default at the October term, 1895, decreeing that the tax deed held by S. G. Bailey and the warranty deed held by George M. Noble to the property in controversy were held by them as officers and agents of the Kansas Loan and Trust Company in trust for the plaintiff, for a conveyance by them to her, that in default of a conveyance the decree stand as such conveyance, and adjudging that the defendant, the Kansas Loan and Trust Company, pay to the plaintiff the sum of $ 177.70 as rents and profits, and for costs against the Kansas Loan and Trust Company, the Trust Company of America, George M. Noble, and S. G. Bailey.

The defendants in error George M. Noble, S. G. Bailey and the Kansas Loan and Trust Company, after the adjournment of the term, filed their motion to vacate and set aside the judgment and decree on account of irregularity in rendering the judgment. On February 5, 1896, at the February term, 1896, of court, this motion was heard, and the court vacated the judgment for irregularity. The defendants moved the court to require the plaintiff to elect upon which cause of action she would proceed, which motion the court sustained, the plaintiff excepting. The plaintiff elected to stand upon her petition as filed, and the court dismissed the case at her cost. To this also the plaintiff excepted, and now brings the case to this court for review.

I. The defendants in error contend that John M. Marshall and Catherine Marshall are necessary parties to this action. There is no merit in this contention. The plaintiff in her petition shows that Marshall and wife conveyed the premises in question, by deed, to George M. Noble, in trust for the plaintiff. The defendants in their statement admit that a deed was procured from Marshall and wife in the name of George M. Noble, subject to the lien of the plaintiff's mortgage, but aver that the plaintiff's mortgage has been satisfied and canceled by the taking of the deed by George M. Noble. From these statements and admissions, it appears that John M. Marshall and Catherine Marshall have no interest in the real estate in question nor in the subject-matter of this action, and that they are not necessary parties.

II. Did the court err in holding that there were grounds for vacating and setting aside the judgment on account of irregularity? The plaintiff in her petition states that she does not know what rents and profits have actually been received, except the sum of $ 121.20 for the years 1891 and 1893; that the Loan Company negligently allowed the premises to be sold for taxes and purchased the same at the tax sale in the name of S. G. Bailey who holds for the use and benefit of this plaintiff; that the Loan Company assured the plaintiff that the tax certificates had been taken out to protect her interest, that the income from the rents and profits had been applied to the expenses incurred by the Loan Company, and that these advancements for the expenses and taxes were all paid; that the plaintiff does not know what advancements for expenses and taxes have been made by the Loan Company in her behalf. From this it is apparent that the court erred in rendering judgment against the Kansas Loan and Trust Company, for $ 177.70, as upon default. The plaintiff was not entitled, under the allegations of the petition, without proof, to a judgment against this defendant for any amount of money, and under the allegations of her petition she is only entitled to recover the amount found to be due her upon an accounting. The trial court very properly held that there were grounds for vacating and setting aside the judgment for $ 177.70 against the Trust Company.

III. Did the court err in holding that the plaintiff should elect upon which cause of action she would proceed? The plaintiff states in her petition the corporate existence of the Kansas Loan and Trust Company and the Trust Company of America, and that George M. Noble and S. G. Bailey are officers of the Kansas Loan and Trust Company. The first nine counts of the petition then set out that John M. Marshall and Catherine Marshall borrowed of the Kansas Loan and Trust Company one thousand dollars, evidenced by a promissory note and mortgage deed upon certain real estate, which note and mortgage deed were afterward, and before maturity, indorsed, assigned and delivered to the plaintiff,...