Sweet v. Ward

• Decision Date: 10 May 1890
• Parties: TIMOTHY B. SWEET et al. v. T. J. WARD et al
• Court: Kansas Supreme Court

23 P. 941

43 Kan. 695

TIMOTHY B. SWEET et al. v. T. J. WARD et al

Supreme Court of Kansas

May 10, 1890

Error from Rice District Court.

THE opinion states the case.

Judgment affirmed.

Rossington Smith & Dallas, for plaintiffs in error.

M. A Thompson, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Rice county, on July 8, 1886, by T. J. Ward and James Henderson against Timothy B. Sweet and the Kansas Loan and Trust Company, to recover the penalty provided for by § 8 of the act relating to mortgages. (Gen. Stat. of 1889, P 3892.) On July 24, 1886, the defendants answered, virtually denying and disclaiming having any interest in the mortgage, and alleging that another party had. On July 27, 1886, the plaintiffs filed a motion to require the defendants to amend their answer so as to make it more specific and certain in a certain particular. On September 10, 1886, this motion was sustained by the court and the defendants required to make the amendments suggested by the plaintiffs, on or before September 14, 1886. This order was not entered upon the journal, however, until February 17, 1887, when it was entered nunc pro tunc, and the required amendment to the answer was never made. On January 25, 1887, the case was regularly called for trial, the plaintiffs appeared, but the defendants did not at that time make any appearance. A trial was had before the court without a jury, and upon such trial the court made the following special findings of fact, to wit:

"The court finds that the plaintiffs are the owners of the real estate in the petition described, to wit, lot No. three, of block No. one, in the original town of Lyons, in Rice county, state of Kansas; that the defendants held a mortgage on said real estate as described in plaintiffs' petition made by W. J. Fuller and Belle C. Fuller his wife, to the defendant Timothy B. Sweet, dated April 1, 1881, for the sum of seven hundred dollars, and that the same is recorded in the office of the register of deeds of Rice county, state of Kansas, on pages 205, 206, 207, 208, and 209, of volume eight of the records of mortgages; and that the plaintiffs had fully paid said mortgage, principal and interest, and had duly demanded of the defendants the cancellation of said mortgage before the commencement of this action, and that the defendants had failed and still fail and refuse so to do; and that the record of said mortgage still remains uncanceled of record."

Upon these findings judgment was rendered in favor of the plaintiffs and against the defendants, as prayed for in the plaintiffs' petition. On February 1, 1887, the defendants filed a motion, which, omitting title and signature, reads as follows:

"1. Now come said defendants Timothy B. Sweet and the Kansas Loan and Trust Company, and move the court to set aside the verdict herein, and to arrest and set aside the judgment, because the said petition filed by said plaintiffs in this cause does not state facts sufficient to constitute a cause of action against said defendants Sweet and the Kansas Loan and Trust Company.

"2. For the reason that said defendants filed a disclaimer in said cause of any mortgage interest in this property, and no evidence was introduced on the trial, or could have been introduced, showing that they were mortgagees, or had any interest whatever in or to the property set forth in said plaintiffs' petition.

"3. Because the said plaintiffs do not claim or allege in their petition that the said Timothy B. Sweet or the Kansas Loan and Trust Company had any such mortgage interest or estate whatever; and for other good and sufficient reasons said defendants, Timothy B. Sweet and the Kansas Loan and Trust Company, allege that said verdict was improperly granted, and judgment improvidently rendered in this cause."

On May 19, 1887, this motion was heard and overruled by the court. And on February 27, 1888, the defendants, as plaintiffs in error, brought the case to this court for review, making the plaintiffs below defendants in error.

For the purposes...