29 Kan. 205 | Kan. | 1883
The opinion of the court was delivered by
This case is a branch of the same litigation which furnished the case of Noble v. Butler, 25 Kas. 645.
The question now presented to this court by counsel is this: Who is entitled to receive this balance? Section 466 of the civil code provides, among other things, as follows: “The sheriff or other officer shall, on demand, pay the balance to the defendant in execution, of his legal representatives.” The district court made the following order with reference to this balance: “ That the clerk of this court retain said ^balance, so that the said Harvey M. Rounsaville and the said George M. Noble may interplead for the same; and if the said Harvey M. Rounsaville fails to interplead for said balance within thirty days from this date, that the same be paid to the said George M. Noble.” We think that Rounsaville, as Noble’s representative, is entitled to receive this balance. (Code, §•466; Herman on Executions, 457.) This balance stands in the place, so far as it goes, of the estate which Rounsaville
Where lands are sold under a judgment, and surplus money accrues, which is brought into court, the other creditors have the same,liens upon the surplus money which they held upon the lands before the sale. (Averill v. Loucks, 6 Barb. 470; Douglass’s Appeal, 48 Pa. St. 223. See also Jones Stationery and Paper Co. v. Hentig, ante, p. 75.)
It is also suggested that Rounsaville is not in court asserting any right to this surplus fund. . This is true, and therefore he is not bound by the order of the court requiring him to interplead, with Noble, for such fund. A judgment or order, without notice, is void. (Mastin v. Gray, 19 Kas. 458, 461, et seq., and cases there cited.) One, not a party or privy, is not bound to take notice of proceedings in court; nor does he lose any right; nor is he bound to attend to his interest in the surplus money,- arising at a sale of which he is not presumed to have notice, so as to protect himself. (Mills v. VanVoorhis, 23 Barb. 136.) Jurisdiction of the person is essential to the validity of a judgment or order aifecting a party personally. See also, with reference to Rounsaville’s rights, Wolf v. Payne, 35 Pa. St. 97, 99.
The order and judgment of the court below will be reversed, and the cause remanded for further proceedings.