Wagner v. Beadle
| Decision Date | 07 May 1910 |
| Docket Number | 16,525 |
| Citation | 108 P. 859,82 Kan. 468 |
| Parties | CHARLES H. WAGNER, Appellant, v. J. G. BEADLE et al., Appellees |
| Court | Kansas Supreme Court |
Decided January, 1910.
Appeal from Kearny district court; WILLIAM H. THOMPSON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. VACATION OF A JUDGMENT -- Fraud. The fraud for which a judgment may be set aside must be actual fraud, involving intentional wrong, as distinguished from legal or constructive fraud.
2. VACATION OF A JUDGMENT -- Same. Assuming, but by no means deciding, that the rule forbidding a judgment to be set aside for fraud in a matter thereby adjudicated does not apply where the defendant had no actual notice of the pendency of the action, no ground for its vacation is established by a showing that it was based on a claim insufficient in law but admitting of assertion in good faith.
3. VACATION OF A JUDGMENT -- Limitation of Action. One against whom a decree quieting title has been rendered upon publication service and without actual notice can not, after the lapse of three years, have the judgment set aside as fraudulent merely by showing that the plaintiff's title was based solely upon a tax deed which showed upon its face that it was not effective as a conveyance.
Lee Monroe, and George A. Kline, for the appellant.
O. H Foster, Edgar Foster, and Fred J. Evans, for the appellees.
On April 18, 1903, F. C. Puckett began an action to quiet title against Charles H. Wagner, upon whom service was made by publication. The petition was in the statutory form, alleging merely title and possession in the plaintiff and an adverse claim by the defendant. Judgment by default was rendered June 23, 1903. On April 28, 1909, Wagner began an action against J. G. Beadle (a purchaser from Puckett) to set aside the judgment on the ground that it had been obtained by fraud. He was denied relief and appeals. The facts upon which he relies for a recovery, as developed by the evidence, are that he knew nothing of the judgment until more than three years after its rendition, and that Puckett had no title except under a tax deed, issued November 5, 1902, which was so defective that the five years statute of limitation could not be invoked in its behalf. His argument is that as the deed showed on its face that it did not convey a good title Puckett necessarily knew that he was not entitled to a decree against Wagner, and was guilty of fraud and imposition upon the court in asking and obtaining one.
Whether the tax deed conveyed a title was the very question involved in the action brought by Puckett. If Wagner had had actual notice of the proceeding he could not avail himself of any false representation in that regard, under the familiar rule that the fraud for which a judgment may be set aside must be external to the matter adjudicated. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 P. 1079.) But he maintains that that rule applies only where the defendant knew of the pendency of the suit and so had a real opportunity to interpose a defense. This contention is supported by what was said in Dunlap v. Steere, 92 Cal. 344, 28 P. 563, where, however, the constructive service was based on a willfully false affidavit. That case quotes a statement to the same effect from the opinion in Irvine v. Leyh, 102 Mo. 200, 14 S.W. 715, but the view there expressed seems in fact to have been that of but a minority of the court. (Ruhe v. Buck, 124 Mo. 178, 203, 27 S.W. 412; Irvine v. Leyh, 124 Mo. 361, 27 S.W. 512.) Other cases cited by the California court, including Adams et al. v. Secor, 6 Kan. 542, tend to justify its conclusion. The case of Schroer v. Pettibone 163 Ill. 42, 45 N.E. 207, has the same tendency. If a defendant who knows nothing of an action until after judgment has been rendered is barred from challenging its good faith, injustice may often result; but if under such circumstances he may question the truth of the petition a decree rendered upon constructive service must always lack finality. The statute (Code 1909, § 83) guards against the practical ill effects of treating such...
To continue reading
Request your trial
-
Simonton v. Simonton
...597, 153 P. 965, 155 P. 98; Brown v. Trent, 35 Okla. 164, 128 P. 895; Liebhart v. Lawrence, 40 Utah 243, 120 P. 215; Wagner v. Beadle, 82 Kan. 468, 108 P. 859; Campbell-Kawannanahoa v. Campbell, 152 Cal. 201, P. 184; Venner v. Denver etc. Co., 40 Colo. 212, 122 Am. St. 1036, 90 P. 623; Dono......
-
Laidler v. Peterson
...Minard, 82 Kan. 338, 108 P. 80; Cheever v. Kelly, 96 Kan. 269, 150 P. 529; Fry v. Heargrave, 129 Kan. 547, 283 P. 626, and Wagner v. Beadle, 82 Kan. 468, 108 P. 859, involved an independent action begun six years after the judgment. In the cases of McCormick v. McCormick, 82 Kan. 31, 107 P.......
-
Latshaw's Estate, In re
...a petition to set aside a judgment under the above provision must be actual. Constructive fraud is not sufficient. In Wagner v. Beadle, 82 Kan. 468, 108 P. 859, it was 'The fraud for which a judgment may be set aside must be actual fraud, involving intentional wrong, as distinguished from l......
-
Schenck v. School District No. 34 of The County of Hamilton
...although seriously erroneous, was only voidable and must be treated as valid when questioned collaterally. (See, also, Wagner v. Beadle, 82 Kan. 468, 108 P. 859. It also held that compromise judgments and those taken by consent in cases where the courts have jurisdiction are not open to col......