93 Kan. 33 | Kan. | 1914
The opinion of the court was delivered by
This is an appeal from a ruling refusing to revive a judgment. In a divorce action a judgment was rendered granting Maria Chumos a divorce from Constantine G. Chumos and awarding her the custody of their three children upon the condition that if she should leave the jurisdiction of the court she might take the youngest child, a daughter, with her, but in such case she was required to deliver the other two children to their father, to be cared for by him until her return.- It was also adjudged that she and the children be granted alimony in the sum of $12,000, to be paid in monthly installments of $75. It appears that he had obtained a certificate issued in her favor by a bank of Greece for eleven thousand drachmas and had
In support of the ruling it is contended that upon the death of Maria Chumos the natural guardianship of the daughter devolved upon the father, Constantine G. Chumos, and that thereafter the domicile of the father became the domicile of the child. Modern Woodmen v. Hester, 66 Kan. 129, 71 Pac. 279, is an authority for this contention. It appears, too, that the probate court of Shawnee county, where the father resides, has recently appointed him as guardian of his children.
In Gillette v. Morrison, 7 Neb. 263, it was held, on a motion to revive after the death of a party, that the merits are not open to consideration, and the only question for decision is, Has the party died and who are his representatives and heirs that are entitled to substitution. It was also held that if the application was in due form and made within the prescribed time the order of revivor must be granted as a matter of right. Here there is no question as to the representative capacity of Chacona nor to the form; of the motion which he has made, neither is there any contention that it was not made in good time. The only objection is that the daughter of the deceased was taken to Greece with the knowledge and consent of Chacona. However, he was not the guardian of the child and was in no way responsible for her custody. His consent to the removal conferred no right on any one and was wholly ineffectual. As executor he had no function to perform with respect to the custody of the child, he had no responsibility as to the actions of its guardian, and he could not, by consent or otherwise, do that which would affect the rights of those entitled to her custody. The fact that he knew or consented to her removal did not deprive him of his official position as executor nor take away his right to a revival of the judgment. The revival of the judgment will not prevent the court from regulating the payments of alimony in accordance with the provisions of the judgment and the changed con
The decision of the court will be reversed with directions to allow the motion and to enter an- order of revivor.