The Wetmore State Bank v. Courter

• Decision Date: 12 February 1916
• Docket Number: 19,694
• Citation: 97 Kan. 178,155 P. 27
• Parties: THE WETMORE STATE BANK, Appellee, v. R. J. COURTER and AMANDA E. COURTER, Appellees, and N. RASMUS et al., Appellants
• Court: Kansas Supreme Court

155 P. 27

97 Kan. 178

THE WETMORE STATE BANK, Appellee, v. R. J. COURTER and AMANDA E. COURTER, Appellees, and N. RASMUS et al., Appellants

No. 19,694

Supreme Court of Kansas

February 12, 1916

Decided, January, 1916.

Appeal from Kearny district court; GEORGE J. DOWNER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. OPENING JUDGMENT--When New Summons Unnecessary. On the filing of a petition to open a judgment it is not necessary to issue a new summons to a defendant who had permitted the judgment to be taken against him by default.

2. SAME--General Appearance Waives Summons. Rule followed that summons is not necessary when a voluntary general appearance is entered.

3. APPEARANCE--What Constitutes a General Appearance. A general appearance is entered by a defendant, (a) when he files a motion to make plaintiff's petition more definite and certain; (b) when he joins in a stipulation that plaintiff may have further time to amend his petition; (c) when files a general denial; (d) when he files an answer to the cross-petition of his codefendant.

4. AMENDMENT TO PLEADINGS--Judicial Discretion. Rule followed that the allowance or refusal to allow amendments to pleadings is within the sound discretion of the trial court.

5. MORTGAGE FORECLOSURE--Venue Where Land is Situated. A foreclosure action is properly brought in the county where the land is situated, and the grantee of the mortgaged land who had assumed and agreed to pay the mortgage is a proper party defendant in such action.

6. SAME--Evidence--Contents of Deed--When Record May be Impeached. When upon due demand a defendant, grantee of a tract of land, is unable or unwilling to produce the deed conveying the title to him, secondary evidence of its contents is admissible although the record of the register of deeds shows a purported copy of the deed, it being the contention of the demandant that the register's record is an inaccurate copy of the original deed.

7. VERDICT--May be Received by Attorney by Agreement. Rule announced in The State v. Keehn, 85 Kan. 765, 118 P. 851, that by agreement of the litigants and with the approval of the trial judge in open court, the verdict of the jury may be received by a designated attorney in the absence of the trial judge, followed and applied.

Guy L. Hursh, and E. R. Sloan, both of Holton, for the appellants.

R. F. Hayden, and George P. Hayden, both of Topeka, for the appellees.

OPINION

DAWSON, J.

In June, 1911, R. J. Courter had a real-estate transaction with N. Rasmus whereby Courter conveyed to Rasmus a quarter section of Kearny county land subject to a mortgage for $ 1000, which Rasmus assumed and agreed to pay, in exchange for a house and lot in the city of Wetmore subject to a mortgage for $ 800, which Courter assumed and agreed to pay. The mortgage on the Kearny county land, which had been executed by Courter and wife, was held by The Wetmore State Bank. This mortgage was permitted by Courter and Rasmus to mature without payment, and the bank brought suit in the Kearny county district court to foreclose its mortgage and for a personal judgment against Courter and to bar Rasmus of his junior and inferior interest in the property.

Personal service of summons was obtained through the sheriff of Nemaha county upon all the defendants, they being residents of that county. Courter answered, not denying his liability to the bank, but pleading his conveyance to Rasmus, and that for a valuable consideration Rasmus had agreed to pay the mortgage, and prayed for a personal judgment against his codefendant, and that if a personal judgment were obtained by plaintiff against Courter and Rasmus the property of the latter be first subjected to the satisfaction of the plaintiff's judgment.

Aside from this answer no appearance was made by either defendant at the trial, and the plaintiff, upon evidence, submitted his cause and obtained judgment according to his prayer.

Some months later Courter filed a petition to vacate the judgment, showing sickness and other good excuse for his and his attorney's nonappearance at the trial. The plaintiff bank answered, confessing the allegations of the petition to vacate, and consented to open the judgment. The defendant Rasmus had no notice of this petition. The court found the allegations of the petition to be true, and on June 19, 1913, set aside the judgment.

The plaintiff then amended its petition, repeating all of its original allegations, but enlarging as to Rasmus, and pleading the conveyance by Courter to Rasmus by the deed of 1911, whereby Rasmus assumed and agreed to pay the mortgage, and praying for a personal judgment against both defendants.

Following this a new summons was issued and served on the defendant Rasmus and his wife, requiring them to answer on or before October 15, 1913.

On October 13, 1913, Rasmus and wife filed a motion asking that plaintiff be required to make its petition more definite and certain; on November 14, 1913, Rasmus and wife joined in a stipulation, filed November 26, 1913, that plaintiff might have twenty days in which to further amend its petition; and on December 13, 1913, the defendants Rasmus and wife filed their answer in which they denied generally, and denied that the deed from Courter to Rasmus contained any provision binding Rasmus to assume and pay the mortgage. On the same day Rasmus and wife filed an answer to the same effect against Courter's cross-petition. Thereafter, when court convened in February, 1914, Rasmus and wife asked and obtained leave to file a motion to vacate the order of June 19, 1913, setting aside the original judgment, because they had no notice and were not served with summons in that proceeding. This motion recited that they appeared "specially for the purpose of this motion." The motion was overruled. Then Rasmus and wife asked leave to amend their answer to include an additional defense, to wit, the matters leading up to the first judgment, and alleging the same to be a final adjudication and still in full force and effect. This leave to amend was denied. A motion to the same effect and praying dismissal was likewise filed and overruled.

The cause was then tried, and the jury in answer to a special question found that the deed of the Kearny county land from Courter to Rasmus contained a recital that Rasmus assumed and agreed to pay the mortgage. From this judgment Rasmus and wife appeal, assigning several errors which will be noticed as we proceed.

1. We do not perceive any error in overruling appellants' motion to set aside the order vacating the original judgment. True, no summons was issued, but the only p...