121 Kan. 820 | Kan. | 1926
The opinion of the court was delivered by
The action in the district court was one to recover an attorney fee. Defendant filed no pleading, did not appear, and judgment was rendered for plaintiff. Subsequently, defendant filed a motion to vacate the judgment. The motion was denied, on the ground the court was without jurisdiction to allow it, and defendant appealed. Defendant also appealed from the unvacated judgment, and assigns error manifest on the face of the record.
The judgment was based on the following instrument in writing pleaded in the petition:
“I hereby employ Burt Comer, attorney of Pratt, Kansas, to institute and prosecute my suit for divorce against my husband, Oscar McGuire, and I agree to pay said Burt Comer for his services as follows, to-wit:
“1. In case no recovery is had in this case, a fee of $50.
“2. In case a recovery is had in this case, a sum equal to 25 per cent of the value of the property, money, or both recovered for me. Also I agree to pay Burt Comer whatever temporary attorney’s fees he is allowed by the court.
“I further agree not to settle, compromise, or otherwise dispose of said suit without the consent of said attorney, and in case I dismiss, compromise, or settle without such consent this suit brought by him for me, I agree to pay said attorney for his services therein a sum equal to one-fourth of the amount of the property, money, or both, recovered by me.
“It is further agreed that said attorney shall not compromise or settle said suit without my consent.”
The petition alleged that, pursuant to this employment, plaintiff successfully prosecuted a divorce action on behalf of defendant, and procured for her an award of real and personal property of the valué of $3,000. The prayer of the petition was for judgment for $750, and the judgment appealed from was for that sum.
The contract was void as against public policy (Railway Co. v. Service, 77 Kan. 316, 94 Pac. 262). Plaintiff contends the provision for payment of a fee in the event defendant did settle, compromise, or dismiss her divorce action, left her free to take such a course, and purged the contract. Defendant contracted, however, not to settle, compromise, or otherwise dispose of the divorce action without her attorney’s consent. She could conclude no arrangement with her husband, however desirable, independently of her attorney, without breach of contract, and the provision referred to was in effect a
In the case of Williams v. Schrock, 118 Kan. 347, 235 Pac. 111, it was held that direct appeal without motion for new trial and without motion to set aside default, was a proper method to correct an error manifest on the face of a default judgment. The principle applies to a judgment based on a petition predicating relief on a contract void as against public policy.
The civil code enumerates grounds of demurrer for defects appearing on the face of a petition (R. S. 60-705), and then provides as follows:
“When any of the defects enumerated in section 93 do not appear upon the face of the petition, the objection may be taken by answer; and if no' objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.” (R. 8. 60-707.)
Therefore, the fact that the petition in this case did not state a cause of action was not waived by failure to call attention of the district court to the defect by demurrer or by answer. The defect in the petition is not one curable by amendment, no evidence which might be produced at a trial could sustain a judgment for plaintiff, and presence or absence of defendant when judgment was rendered could add nothing to the propriety of the judgment. The petition challenged judicial action, and the judgment is not void. It is merely erroneous. The error committed, however, was not a trial error, to be called to the attention of the distinct court by motion for new trial. The error is manifest on the face of the record, and the defendant has a remedy by direct appeal.
Since the appeal from the judgment itself is well founded, it is not
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant.
