Welch v. Challen
| Decision Date | 01 January 1884 |
| Citation | 31 Kan. 696,3 P. 314 |
| Parties | D. B. WELCH, et al., v. LAURA A. CHALLEN |
| Court | Kansas Supreme Court |
Error from Marion District Court.
THE record discloses the following facts: That the plaintiffs, D B. Welch and J. M. Estep, are, and were at all the times mentioned in their petition herein, residents of the state of Ohio; that they filed their petition in the district court of Marion county on the 16th day of July, 1883, the allegations of which are substantially as follows:
That on the 28th day of September, 1881, the defendant, Laura A Challen, filed her petition in said court against the plaintiffs, alleging that she was the owner in fee, and was possessed of certain lands, describing them, in said county and that defendants claimed some title, interest and estate therein, adverse to her, the nature and amount of which was unknown to her, but whatever such title might be, it was invalid as against her title and possession, and prayed for the usual decree in actions to quiet title. This petition of defendant was set out in full in plaintiffs' petition herein.
Plaintiffs further alleged that said Laura A. Challen, upon filing her said petition, caused a summons to be issued for the plaintiffs, which summons was served upon plaintiffs in Cadiz, Ohio, under the provisions of § 76 of the civil code, on the 15th day of November, 1881, and notified plaintiffs that they must answer the petition of said defendant within sixty days from the day of service of said summons; that at the time said summons was served, one W. B Beebe, the agent of plaintiffs, was in said Marion county, and plaintiffs immediately informed said agent of the pendency of said suit, and directed him to at once take proper steps to defend the same; that said Beebe went to the attorney of said Laura A. Challen to ascertain when said action would come on for trial; that said attorney informed said Beebe that it would not be for trial at the then next ensuing term, because that term would commence before the time for answering would elapse; that plaintiffs and defendant had been corresponding with a view to an amicable adjustment of their differences, and said Beebe then requested defendant's attorney not to take any advantage of plaintiffs if they should fail to effect a settlement with defendant, but to afford them an opportunity to answer, and defend said action; that said attorney assured Beebe that he would take no advantage, but would allow plaintiffs ample time to answer and defend said action; that said Beebe then employed A. McKee, an attorney of the several courts of said county, to defend said action on behalf of the plaintiffs, and instructed him to file an answer to defendant's said petition at the proper time, and fully informed him of the nature of said suit, and stated to him fully the facts constituting plaintiffs' defense thereto, and said McKee promised and engaged to diligently attend to the interests of the plaintiffs in said action, and to keep them fully informed of the progress of the same, and of all matters necessary to be done in defense thereof; that said McKee was a lawyer of good character and standing at the bar of said county, and plaintiffs had every reason to and did believe that he would diligently attend to the defense of said suit in their behalf; that shortly after the said employment of said McKee to defend said action, the said Beebe returned to Harrison county, Ohio, and was not again in Marion county, Kansas, until long after said suit was tried and judgment rendered therein; that said McKee did not diligently attend to the defense of said suit, but wholly failed and neglected to take any steps whatever to protect the interests of plaintiffs or defend the same; that about the 25th of December, 1881, and before the time for filing an answer had expired, the said McKee left Marion county and the state of Kansas, and never returned; that he totally failed and neglected to do anything in pursuance of his said employment by plaintiffs, but permitted said suit to go by default, and never appeared in court to defend the same, and never informed the plaintiffs or said Beebe of his failure to file their answer and make defense to said action, and never informed them of his removal from the state of Kansas; that plaintiffs relied upon said McKee, as their attorney, to do everything necessary to be done in and about the defense of said action, and depended upon him to keep them fully advised concerning the same, and confiding in his supposed integrity and honesty, and further relying upon the aforesaid assurances of the defendant's said attorney, the plaintiffs took no further action toward defending said suit; that the plaintiffs had no knowledge of the time said action would be tried, and did not know that it had been tried and judgment rendered against them by default, until a long time thereafter, but, relying upon their said attorney to keep them fully advised, they supposed the said action was still pending in said court, and undetermined; that at the next term of said court, in May, 1882, said action was by said defendant's attorney called up for trial, and no one appearing for plaintiffs, judgment was taken by said defendant against the plaintiffs, by default.
(A copy of said judgment was inserted in said petition.)
Plaintiffs further averred that they received no notice that said action had been tried for more than six months thereafter; that they had a good and valid defense to said action; that said judgment was erroneous, unjust, and contrary to equity and good conscience, and ought not to be permitted to stand; that said A. McKee was wholly insolvent and financially irresponsible, and plaintiffs were wholly remediless at law, and without adequate remedy, unless the court vacated said judgment and permitted them to defend; that the facts constituting their defense were as follows, viz.: that all the lands mentioned in defendant's petition were taxable for the year 1873, and the taxes assessed against them for said year not being paid, said lands were separately sold according to law by the county treasurer at the tax sale in May, 1874, and plaintiffs were the purchasers of the same; that plaintiffs paid the subsequent taxes thereof in 1874, 1875, 1876, 1877, 1878, 1879, and 1880; and on September 22, 1881, said lands were deeded by the county clerk to the plaintiffs, not having been redeemed by any one.
(Copies of said tax deeds were set out in said petition.)
Said petition then stated the amount of the subsequent taxes paid by plaintiffs on each of said pieces of land. Plaintiffs then denied that said defendant owned a fee-simple title and interest in said lands, and denied that she owned any interest or estate whatever in the same, and denied that she was in possession of said lands, or any part thereof, and averred that they, the plaintiffs, were the owners of said lands.
The prayer of said petition was:
"That said judgment be vacated, and plaintiffs allowed to defend; and that upon a trial of said action that they have judgment that they were the owners of said lands, and that their title to said lands be forever quieted as against said Laura A. Challen and all persons claiming under her, or that if the court should find the title of plaintiffs to be invalid, that then the full amount of taxes paid by them on said lands, together with all interest and costs allowed by law, be ascertained, and that they have judgment for the same."
The petition was duly verified by the said W. B. Beebe, the agent of the plaintiffs. Defendant demurred to this petition, on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court on the 27th of August, 1883. This ruling the plaintiffs bring to this court.
Judgment affirmed.
L. F. Keller, for plaintiffs in error.
Doster & Bogle, for defendants in error.
OPINION
The principal questions involved in this case are the following (1.) When, if...
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...have prevented the trial or judgment"--citing Freeman on Judgments (4th Ed.) vol 1, sec. 15; Hill v. Williams, 6 Kan. 17; Welch et al. v. Challen, 31 Kan. 696, 3 P. 314; Wynn v. Frost, 6 Okla. 89, 50 P. 184; Marshall v. Marshall, 7 Okla. 240, 54 P. 461. ¶8 And the rule is well settled that ......
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