50 Kan. 648 | Kan. | 1893
The opinion of the court was delivered by
The facts in this case are as follows: The Farmers’ and Drovers’ Bank presented a claim to C. H. Alexander, as assignee of thé Babcock Hardware Company, for allowance on two promissory notes, amounting to $8,000. The bank admitted having received, through the collection of collateral notes, $3,800. The hardware company, as assignor, filed its answer to the claim of the plaintiff below, alleging that the bank had received a large amount of property belonging to the hardware company, which was fully described in the answer, amounting in all to $14,495, and asking that it be set off against the claim of the plaintiff, and for an allowance of the balance against the bank. The matter was heard before the assignee, who found from the evidence that the Farmers’ and Drovers’ Bank was indebted to said Babcock Hardware Company in the sum of $345.73, for which sum the assignee rendered judgment against the bank. From that judgment the bank appealed to the district court of Kingman county. The case was regularly set for trial in the Kingman county district court on the 22d day of December, 1888.
The case, however, was called up by the plaintiff on the 6th day of December, 1888, 16 days before the time it was set for trial as shown by-the case, although the journal entry reads the 8th of December. The journal entry shows that
The motion was filed and placed on the motion docket of the district court on the 25th day of February, 1889. On
Afterward, on the 25th day of April, 1889, the defendant filed a motion for a new hearing and a new trial, which motion the court overruled, and the defendant excepted.
The defense set up in the hardware company’s answer, if true, is an ample defense against the plaintiff’s claim. Section 568 of the code provides that—
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which said judgment or order was made: . . . Third, for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.”
Section 569 provides:
“The proceedings to correct mistakes or omissions of the*653 clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment, because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term.”
Section 575 provides:
“Proceedings for the causes mentioned in subdivisions 3 and 6 of section 568 shall be within three years.”
In the case of Leavenworth v. Hicks, McCahon, 160, this court decided that the provisions of § 547 of the code, that a motion to vacate a judgment because of its rendition before the action regularly stood for trial can be made only on the first three days of the next succeeding term, merely prescribe the time within which a party may come into court to vacate a judgment in an action which had not been properly entered on the trial docket. The party may make his motion at the same term at which the judgment is rendered; and when said motion is made, and the party appears, at the same term, for the purpose of the motion, it is not error for the court to hear and determine it.
Counsel for the defendant in error, in their brief, challenge the truthfulness of the record brought to this court, and assert that “it is padded with misstatements.” We, however, feel constrained to consider the facts presented by the court rather than the counsel's statements of them. Counsel for the plaintiff in error contend that the only question to be considered by this court is, as to whether the court erred in refusing to hear their motion to set aside the judgment. Counsel for the defendant in error, however, contend “that the question now is, did the court commit material error in sustaining the objection of the defendant to the hearing of said motion at the time and as the same was presented?” and they also say, “ We think the all-important question before this court is as to the merits of their motion,” and contend that this court should inspect the entire record and determine the merits of the application of the plaintiff in error to set aside.the judgment.
The order of the district court ^fusing to hear the motion to set aside the judgment will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.