15 Kan. 344 | Kan. | 1875
The opinion of the court was delivered by
But it is also claimed by Dresser that said action was commenced without any authority from Wood, and therefore that ^le proceeding could not constitute a Us pendens. But the record shows that “some days after said acf¿on was commenced,” Wood ratified the same. How many days thereafter, is not shown. It evidently could not have been weeks however, or the record would have said “ weeks,” instead of saying “ days.” And it could not have been more than seventeen days at most, for the following reasons: -On November 4th the petition was filed and service made on Warner, and the Branscoms. On November 16 th Warner filed a motion to set aside the service, and quash the summons. And on November 21st, just seventeen days after the petition was filed, this motion was taken up for hearing, and Wood appeared in the court to contest the same. It is true, Wood’s appearance was by'counsel, but there is no pretense that this appearance was unauthorized. The court over
Dresser also claims that Wood did not sufficiently plead in this action the lis pendens of the other action. He set forth *n action in his answer to Dresser’s petition the rendition of the judgment in the other ac£jon> He also sets forth in his answer that at all times up to the rendition of said judgment, and since, Warner, Mowry & Hawkins were the owners of the Dresser mortgage. These facts, if true, certainly constitute a good lis pendens. Indeed, it is not necessary that they should all be true, or wholly true, in order to constitute a good Us pendens. Suppose, for instance, that instead of Warner, Mowry & Hawkins owning the mortgage up to and after the rendition of the judgment, as pleaded, they merely owned it up to and after the time when the suit was actually pending against Warner, as was the fact, still the Us pendens would be sufficient. We think the answer was sufficient. And besides, all the parties tried the case on the assumption
The judgment of the court below is affirmed.