Weaver v. Frazee, s. 47676

• Decision Date: 06 March 1976
• Docket Number: Nos. 47676,47824,s. 47676
• Citation: 547 P.2d 1005,219 Kan. 42
• Parties: W. B. WEAVER, Appellant, v. Blanche FRAZEE et al., Appellees.
• Court: Kansas Supreme Court

Page 1005

547 P.2d 1005

219 Kan. 42

W. B. WEAVER, Appellant, v. Blanche FRAZEE et al., Appellees.

Nos. 47676, 47824.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

2. Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or § 2 of the Bill of Rights of the Kansas Constitution.

3. A judgment that is void for lack of due process of law many be set aside at any time despite any statute of limitations otherwise applicable to an action to set aside such a judgment.

4. In a 1974 action to set aside a 1957 default judgment and subsequent execution sale and to quiet title, it is held the trial court erred in dismissing the petition for failure to state a claim upon which relief could be granted.

5. Under K.S.A. 60-208(e)(2) a plaintiff may combine more than one cause of action, pleading in the alternative, regardless of consistency. He may allege or make contradictory or alternative statements until be finds out which theory, if any, the facts support, and is permitted to shift the theory as the facts develop.

6. Under K.S.A. 60-215(a) (as amended) a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. A motion to dismiss is not a responsive pleading, and its service does not terminate a plaintiff's right to amend his petition.

7. Even where leave of the court is required to amend, under K.S.A. 60-215(a) (as amended) 'leave shall be freely given when justice so requires.'

8. In Kansas the rule of res judicata is not binding and does not apply to a different claim for relief even though it may be between the same parties.

9. When a different claim for relief is filed between the same parties a collateral estoppel may be invoked as to questions and issues shown to have been actually decided in the prior action.

10. The statute of limitations, res judicata, and estoppel are all, under K.S.A. 60-208(c), affirmative defenses which must be raised by answer. It is only when such defenses clearly appear on the face of the petition that it is subject to dismissal under 60-212(b)(6) (as amended) for failure to state a claim.

11. An order dismissing an action to set aside a default judgment and execution sale as being barred by the statute of limitations is not res judicata as to an action for damages for fraud in obtaining and concealing the existence of the default judgment and sale. Neither does such an order actually decide any question or issue so as to give rise to a collateral estoppel which would be controlling in the damage action.

12. In an action for damages for fraud in obtaining and concealing a default judgment and the resulting sale on execution of plaintiff's interest in certain real estate it is held: the trial court erred (a) in denying plaintiff leave to amend his petition; (b) in finding on a motion to dismiss that the action was barred by res judicata and collateral estoppel; and (c) in dismissing the petition for failure to state a claim upon which relief could be granted.

Byron G. Larson, Dodge City, argued the cause, and Larry L. Kopke, Great Bend, was on the briefs for appellant.

Jerry M. Ward, of Ward & Berscheidt, Great Bend, argued the cause and Steve W. Church, Greensburg was with him on the briefs for appellee, Vincent G. Fleming.

Vincent G. Fleming, Larned, argued the cause, and Dennis O. Smith, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, was with him on the briefs for appellee, Blanche Frazee.

David L. Patton, of Smith & Patton, Dodge City, argued the cause and was on the brief for appellees, Roy Weaver and Valeda H. Weaver, his wife.

FOTH, Commissioner:

These are separate appeals by W. B. Weaver from orders dismissing two separate actions brought by him in the district court of Kiowa county. Since both actions arose out of the same transaction and the parties defendant overlap the appeals were consolidated for oral argument and are hereby consolidated for decision. Both cases were dismissed on the defendants' respective motions under K.S.A.1974 Supp. 60-2121(b)(6) for failure to state a claim upon which relief can be granted. The ultimate issue before us is whether either petition stated a cause of action.

The first action, filed April 18, 1974, was in the nature of a quiet title suit, aimed at setting aside a 1957 judgment against the plaintiff and the resulting execution sale of plaintiff's real estate. The petition alleged in substance that in 1957 plaintiff W. B. Weaver owned an undivided one-fourth remainder interest in 620 acres of Kiowa county land, subject to a life estate in his mother, who died on August 6, 1972. (The other three-fourths were owned by his sister and two brothers.) The critical allegations were as follows:

'. . . On May 11, 1957, Durwood B. Frazee, doing business as Frazee Grain Company at Larned, Kansas, filed an action in the District Court of Kiowas County, Kansas, being case number 4862, whereby Durwood B. Frazee petitioned the court for a judgment against this plaintiff in the amount of $1,046.04 for claimed indebtedness upon an account, when, in fact, the plaintiff was not indebted to the said Durwood B. Frazee. In the action against this plaintiff in case number 4862, Durwood B. Frazee caused the one-fourth (1/4) interest of W. B. Weaver to be attached by the Sheriff of Kiowa County, Kansas, and secured service upon this defendant by publication, all as shown by the files and records herein, incorporated herein by reference. Even though the attorney for Durwood B. Frazee, Vincent G. Fleming, made an affidavit for constructive service upon W. B. Weaver, as shown by said proceedings, setting forth the then residence of W. B. Weaver in Kit Carson County, Colorado; post office address Seibert, Colorado, this plaintiff W. B. Weaver, was never actually personally notified of the commencement or pendency of said action in case number 4862, and Durwood B. Frazee obtained judgment by default against this plaintiff on September 4, 1957, and caused said real property, belonging to this plaintiff, to be sold by the Sheriff of Kiowa County, Kansas pursuant to the order of the court on the 15th day of October, 1957, for the sum of $1,135.48 to Durwood B. Frazee, the plaintiff in said case number 4862. Thereafter the sale was confirmed by this court on the 6th day of November, 1957. Because this plaintiff, W. B. Weaver, was a resident of Kit Carson County, Colorado, and not a resident of the State of Kansas, he was unaware of the proceedings in case number 4862, and was not notified in any manner other than by notice published in The Kiowa County Signal. Because the plaintiff was not actually personally notified of the commencement and pendency of the action in case number 4862, there was a denial of due process to this plaintiff, and this plaintiff is in peril of losing his property without due process of law, and the court should relieve the plaintiff from the operation of the judgment and all other proceedings in said case number 4862.'

The petition went on to allege that because plaintiff in fact did not owe anything to the Frazee Grain Company in 1957 the judgment was obtained by fraud; that on April 16, 1974, the defendant Blanche Frazee, widow and sole heir of Durwood Frazee, had joined with the other remaindermen in a contract to sell the 620 acres for $151,280.00; and that the defendant Vincent G. Fleming was asserting an attorney's lien on Blanche Frazee's interest in the property. The prayer was for an order vacating the 1957 judgment and sale and quieting plaintiff's title to his undivided one-fourth interest.

The principal parties defendant were Blanche Frazee and any other successors in interest to Durwood Frazee, and attorney's lien claimant Vincent Fleming. Also named, for the purpose of ancillary relief, were the purchasers under the 1974 contract of sale and the bank which was serving as escrow agent under that agreement.

From that portion of the petition quoted above it may be seen that the thrust of plaintiff's cause of action is that he received no personal notice of the 1957 suit, but was served by publication only, despite the fact that the plaintiff in that suit had actual knowledge of his whereabouts as reflected in the affidavit made for publication service. The failure to give him actual notice, he claims, deprived him of his property without due process of law.

Assuming the facts pleaded to be true (Robertson v. McCune, 205 Kan. 696, 472 P.2d 215), do they form a basis for declaring the 1957 default judgment and execution sale void? We must conclude that they do.

There is no allegation and no claim that the attachment and publication service did not comply with our then existing statutes, but that is far from the end of our inquiry. In 1950 the United States Supreme Court decided Mullane v. Central Hanover Tr. Co,, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. The bank in that case sought settlement of its accounting as a common trustee and served notice upon all beneficiaries by publication, as provided by statute. The effect of the judgment rendered was to settle all questions respecting the management of the common fund to the date of the account.

In reversing the judgment the Supreme Court noted:

'. . . Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and...