The Garrett Biblical Institute v. Minard

• Decision Date: 09 April 1910
• Docket Number: 16,501
• Citation: 108 P. 80,82 Kan. 338
• Parties: THE GARRETT BIBLICAL INSTITUTE, Appellant, v. HENRY C. MINARD, Appellee
• Court: Kansas Supreme Court

108 P. 80

82 Kan. 338

THE GARRETT BIBLICAL INSTITUTE, Appellant, v. HENRY C. MINARD, Appellee

No. 16,501

Supreme Court of Kansas

April 9, 1910

Decided January, 1910.

Appeal from Bourbon district court; WALTER L. SIMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS -- Default -- Notice -- Res Judicata. A judgment by default, based on actual notice to the defendant is as conclusive against him upon every matter admitted by the default as if he had personally appeared and contested the plaintiff's right of recovery.

2. JUDGMENTS -- Vacation -- Fraud Must be Collateral and Extrinsic to Issue Involved. While a judgment may be vacated and a new trial had "for fraud practiced by the successful party in obtaining it," it is such fraud as is collateral and extrinsic to the issues involved in the action and on which the judgment was founded, and hence a party against whom a judgment by default was rendered is not entitled to have the judgment set aside and the issues retried because the allegations in plaintiff's petition, which constitute the merits of the case, are alleged to be untrue.

A. M. Keene, and E. C. Gates, for the appellant.

W. P. Dillard, and W. W. Padgett, for the appellee.

OPINION

JOHNSTON, C. J.:

On March 3, 1906, Henry C. Minard instituted an action against Robert Fowler and the Garrett Biblical Institute to recover a tract of land. Personal service was obtained on Fowler, and constructive service upon the institute. No answer was filed by either defendant, and on June 6, 1906, judgment by default was entered deciding that Minard was the owner of the land and awarding him possession of the same. On September 7, 1906, the institute applied to the court to open up the judgment and allow it to make a defense, alleging that it never had actual notice of the case nor opportunity to defend against it. A hearing was had upon the application, wherein it was shown and found that the institute really had actual notice of the pendency of the action, and upon appeal this finding was affirmed. ( Garrett v. Minard, 79 Kan. 470, 100 P. 55.) After the refusal to reopen the judgment the institute brought the present action, alleging again that it had not been duly summoned in the ejectment action and had no actual notice or knowledge of its pendency. It also alleged that Minard had no ownership or interest in the land when that action was begun or decided, and that the allegations in his petition as to ownership, upon which judgment was founded, were wholly false and known by him to be false when they were made, and that the court was thereby misled and the judgment in favor of Minard fraudulently obtained. Issues were joined on these averments of the petition, and upon a trial were rightly decided in favor of Minard. The judgment by default, based as it was on legal notice, was as conclusive against the institute upon every matter admitted by the default as any other kind of judgment could have been. (Johnson v. Jones, 58 Kan. 745, 51 P. 224.) The claim that the institute did not have actual notice of the pendency of the ejectment action was adjudicated against it upon the application to reopen the judgment. On that hearing it had full opportunity to prove this claim, but there was a finding, based on sufficient testimony, that it had actual notice of the action and a fair chance to defend against it. The question was foreclosed by the decision in Garrett v. Minard, supra.

There is a further contention by appellant that the judgment in ejectment should be annulled because the allegations of Minard in his petition were untrue. The truth of these averments was directly involved in the ejectment action and was...