59 Kan. 676 | Kan. | 1898
This is a very strange case. We do not deem it necessary to enter minutely into the many questions urged on our consideration. It is apparent that by a most remarkable procedure the plaintiff has been denied any trial on the merits of his action. It is at least very doubtful whether any valid reason existed for bringing in the People’s Bank as a party. While Boyd had transferred his property to the bank by deeds and bills of sale, absolute in form, he had taken back a written contract to re-convey on the payment of his debt to the bank, so that the whole contract was in writing and a copy of the defeasance executed by the bank was attached to the plaintiff’s petition. It thus appeared in writing that the transfer óf the property amounted to a mortgage, and there does not appear to be greater reason for bringing in the bank as assignor than there is in any other case of an assignment of paper secured by mortgage.
But assuming that the bank might properly be made a party, and that the court acquired jurisdiction by the service on Choat, the judgment entered in favor of Boyd on his cross-petition against the bank did not conclude Choat’s rights and was no defense whatever to his action. It was not claimed by Choat, .nor alleged by Boyd, that he stood in the attitude of a purchaser of negotiable paper for value before maturity. He bought the notes after they were due and took them subject to all defenses that Boyd could have made against the bank. These defenses were available to Boyd without making the bank a party, to precisely the same extent as with it. There was
At the trial of the main case Choat proved the execution and transfer of the notes to himself, and it was conceded that the deeds and bills of sale stood as security for the debt. He therefore had established fully his cause of action. Against this the defendant interposed nothing but the bare judgment taken by default against Dunn and the .Bank. This judgment, rendered as it was, neither proved nor tended to prove any defense against the plaintiff’s claim. The default of the bank, if it really was in default, amounted to nothing but an admission at that time of the averments of defendants’ answer. Nothing could be clearer than that the bank, years after the transfer of the paper to the plaintiff, and long after the institution of his suit to recover judgment on it, could not by any admission, declaration, or default, prejudice in any manner Choat’s right of recovery. On the testimony introduced Choat was entitled to the judgment he claimed, yet the trial court decreed the cancellation and return of all the papers that he held and charged him with the costs of the action. This judgment cannot stand. ' It is reversed and the case remanded for a new trial.
