8 Kan. App. 571 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
Whether or not Curns & Manser were authorized by A. F. Alexander, as his agents, to collect a debt evidenced by a note and mortgage from Jacob Binkey and wife, was the principal question presented by the pleadings and tried and determined by the court. The petition filed by J. M. Alexander prayed for a perpetual injunction restraining the sheriff of Cowley county from selling a certain tract of land then owned by the plaintiff under a foreclosure judgment in favor of A. F. Alexander and against the Binkeys. A good cause of action was stated in the petition. The court found that all the allegations of the petition were true ; that those of the answer were not supported by the evidence ; that the judgment against the Binkeys under which the land was about to be sold had been assigned to the plaintiff by Curns Manser, who were the agents of A. F. Alexander to
Plaintiffs in error ask leave to amend the petition in error by. inserting an allegation with an exhibit thereto respecting the written assignment of the judgment, which at the time of the trial could not be found and has been discovered since the petition in error was filed. The amendment cannot be allowed, as it .involves the amendment of a case-made after the same was filed in the appellate court. (Suavely v. Buggy Co.,. 35 Kan. 106, 12 Pac. 522.)
We think the court admitted improper evidence over the objection of defendants below, but we find competent and unobjectionable evidence covering the same ground. We therefore hold that the admission of the improper evidence was not reversible error.
In the action in which A. F. Alexander obtained his judgment of foreclosure against the Binkeys, two other mortgages were foreclosed, all covering the same real estate. The land was sold under a judgment in favor of Frances Kelley and was purchased by J. M. Alexander, who was a judgment debtor under the Kelley judgment. A. F. Alexander’s judgment was a first lien on the land. In the decree confirming the sale it was .stated that J. M. Alexander was the "present owner and assignee of the judgments heretofore rendered in. said action first above entitled-in favor of Jacob Binkey and A. F. Alexander respectively.” It thus appears-that the matter .of the assignment of the judgment had received an adjudicad tion prior to the commencement of the present action.
The judgment of the trial court is supported by ■competent evidence and will be affirmed.