83 Kan. 743 | Kan. | 1911
The opinion of the court was delivered by
In an action brought by the commissioners of Cheyenne county against Solomon Walter, H. C. Ewing and others a judgment was rendered, on service by publication, foreclosing a tax lien on a quarter section of land. H. C. Ewing had an interest in the land, which he assigned to Wallace Rob
The original affidavit of Robertson was irregular in that it was verified before his attorney (Warner v. Warner, 11 Kan. 121; Tootle, Hanna & Co. v. Smith, 34 Kan. 27), but it was not void for that reason. It was an irregularity which was subject to be cured by an amendment. (Swearingen v. Howser, 37 Kan. 126.) The amended affidavit was probably ignored because it was filed more than three years after the judgment
“Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done.” (Albright v. Warkentin, 31 Kan. 442, 445.)
(See, also, Erving v. Windmill Co., 52 Kan. 787.)
There is some contention that as Robertson was not a party he was not entitled to the benefits of that section, but in Leslie v. Gibson, 80 Kan. 504, it was held that the grantee of a party to the action who was not himself named as a defendant, but who was bound by the judgment, has the same right to have the judgment opened up and to make his defense that his grantor had. The word “party,” as used in that section, applies not only to those named in the record but to everyone whose property rights are affected by the judgment.
There is a contention that the appellants’ application should be treated as one to vacate the judgment rather than to open it up. It is true that the validity of the judgment was challenged because of insufficient notice, but there was a distinct application to have it opened up and to give appellants an opportunity to defend, in which there was a substantial compliance with the statutory requirements. Now, the fact that they asked for more than could be awarded did not justify the refusal of that to which they were entitled. By asking to have the judgment opened up they may have so recognized its validity as to preclude them from insisting that no judgment had ever been rendered, but
There was error in striking out the affidavits and in denying the application made by appellants, and for this reason the judgment is reversed and the cause remanded for a new trial.