82 Kan. 327 | Kan. | 1910
The opinion of the court was delivered by
The court of common pleas of Wyandotte county, in an action wherein the Wyandotte State Bank was plaintiff and O. B. Trower, Lillie A. Trower and T. H. Beekman were defendants, rendered judg
On January 25, 1909, Beekman began this action, under section 310 of the civil code (Gen. Stat. 1901, § 4758), to vacate and'set aside the judgment so far as it affected him. A demurrer was filed to his petition and was overruled, and from that ruling the Trowers appeal.
The petition contained in substance the facts herein
It is claimed that the voluntary appearance of Beekman gave the court jurisdiction of him as fully as if he had been served with a summons, that a defendant served with a summons is bound to take notice of every step taken in the action, and that under this rule Beekman must be held to have known of the filing of the amended answer and cross-petition. In support of this view several decisions are cited, among which are the following: Kimball and others v. Connor, Starks and others, 3 Kan. 414; Curry v. Janicke, 48 Kan. 168; Clay v. Hildebrand, 44 Kan. 481; Jones v. Standiferd, 69 Kan. 513; Shellabarger v. Sexsmith, 80 Kan. 530. There are other cases cited, but these are the strongest in the list, and they do not seem to sustain the point. The case of Kimball and others v. Connor, Starks and others 3 Kan. 414, was limited and distinguished in the case of Beecher v. Ireland, 46 Kan. 97, so that it does not apply to these facts. The general idea running through this line of cases seems to be that while every party is entitled to his day in court, and to have an opportunity to defend and vindicate his rights, he must
“When the original summons is served the defendants are in court for every purpose connected with the action, and the defendants served are bound to take notice of every step.” (Page 431.)
This rule 'has • been modified, however, in • several cases where it has been held that a judgment can not be properly entered upon a pleading which has been amended in a material matter, where the adverse party is in default or absent. (Wm. H. Haight v. Justus Schuck et al., 6 Kan. 192; Alvey v. Wilson, 9 Kan. 401; L. L. & G. Rld. Co. v. Van Riper, 19 Kan. 317; St. L. & S. F. Rly. Co. v. McReynolds, 24. Kan. 368.) In the case being considered the cross-petition was amended in a
When Beekman entered his voluntary appearance he was bound to use due diligence to protect whatever interests he might have in the action. Neither the petition nor the answer, however, suggested any facts which he was called upon to notice. He might have filed a cross-petition and had his warranty deed foreclosed as a second mortgage, but he was under no obligations to do so and he chose to let the opportunity pass. The other parties had filed such pleadings as were presumably satisfactory to them. It was not a case where other lienholders might come in and assert rights inconsistent with Beekman’s interest. ■ There was no occasion for him to anticipate the possibility that a contingency might arise in which it would be necessary for him to be present in order to protect his rights, and therefore it can not be said to be a want of due diligence for him to let the action go without, further attention. A very different rule would be applied to the Trowers. They were the owners .of the land. They knew what liens were upon it, and that all holders of
The demurrer was properly overruled. The judgment is affirmed.