12 Kan. 242 | Kan. | 1873
The opinion of the court was delivered by
This action grows out of the same transaction between the plaintiffs and the Ottawa Bank which gave rise to the suit between these same parties in which an opinion has just been filed, (supra, 238.) As stated in that opinion, the notes for $4,954.08 were transferred by the Ottawa Bank’ to the Lawrence Bank, and by it placed in judgment. The petition alleges substantially the same facts as stated in that opinion, that the Ottawa Bank transferred the notes fraudulently, without any consideration, and for the purpose of preventing plaintiffs from making their legal defense to them; that when said suit was brought the plaintiffs, desiring to avail themselves of their defense, made inquiry of both the banks, and that both of them falsely and fraudulently represented that the transfer had been bona fide, before maturity, and for a valuable consideration fully paid, and without notice of any defense; and that relying on, and induced by said-representation, the plaintiffs failed to make their defense, and allowed judgment to be taken. The prayer was for an order temporarily .restraining any proceedings to enforce these judgments, and that upon a final hearing they be set aside and a new trial granted. Upon thé hearing of the motion to- dissolve the injunction, tire plaintiffs wholly failed to show any false and fraudulent representations, as alleged. On the contrary, Mr. Elder,-one of the plaintiffs, testified that “both judgments were taken by agreement made in open court;” and in reply to a question as to why no defense was made, said, “The principal reason was that I went into a compro