28 Kan. 183 | Kan. | 1882
The opinion of the court was delivered by
The facts of this case are as follows: In August-, 1875, R. A. Phelps was the owner of one hundred
“Beginning at the southwest corner of the northeast quarter; thence north ten and eighty-five one-hundredths chains; thence east six and fifteen one-hundredths chains; thence south ten and seventy-five one-hundredths chains; thence west six and fifteen one-hundredths chains, to the place of beginning; containing six and sixty-seven one-hundredths acres.”
The mortgage, however, recited that it conveyed 122.45 acres, which was in fact all that Phelps owned in said quarter-section, and to make which amount required the tract of 6.67 acres, whose specific description was omitted. The 122.45 acres constituted a single farm, and the land was so situated that the line dividing the 6.67 acres from the balance of the farm ran through and divided the dwelling-house and orchard, leaving part of each on each side of the line. The note and mortgage were subsequently indorsed to the plaintiff. On the 6th day of August, 1877, said Phelps executed to the First National bank of Parsons a mortgage to secure a past-due and precedent debt, which mortgage included said tract of 122.45 acres,.and also several other parcels of land. On the 24th day of October, 1879, the bank commenced an action to foreclose its second mortgage, in' which action the present plaintiff was made defendant, who appeared and set up his mortgage. A decree of foreclosure was thereafter entered, in which plaintiff’s mortgage was adjudged a prior lien; but by mistake the same omission in description was carried into the decree, and the 6.67-acre tract was left out from that portion of the lands upon which plaintiff’s mortgage was adjudged
Obviously two questions are presented: First, Was the demurrer properly overruled? Second, Upon the showing made, did the district court err in refusing to set aside the judgment and open the case for answer and trial?
Again, counsel for the bank contends that whatever might be right if the proceedings were against the mortgagor alone, it ought not to be sustained against the bank, because in ignorance of any mistake it has acquired rights upon this property by virtue of its mortgage. It is doubtless a general proposition, that where rights of third parties have intervened a mistake cannot be corrected to their prejudice.But that proposition cannot avail the bank in this case, because, as alleged, the bank parted with nothing. It simply took its mortgage as security for a debt already due. Whether its mortgage was good or bad, covered much or little, this was not a mortgage for which it parted with anything. It would be in no- worse condition if its entire mortgage was adjudged void than it was before it took it. It stands, therefore, in no better position than it would if a voluntary grantee from the mortgagor. Having parted with nothing,
We conclude, therefore, that the demurrer to the petition was properly overruled.
The other question is one of more doubt. Counsel contends that the case was improperly set down on the docket for the first day of the term. The statute provides (Code, §313,) that “actions shall be set for particular days in the order hereinafter stated, and so arranged that the cases set for each day shall be tried as nearly as may be on that day, namely: First, issues of fact to be tried by a jury; second, issues of fact to be tried by the court; third, issues of law.” It appears that the clerk in making out the docket for that term set all the cases for three days. On the first day were placed something over thirty cases standing on default — this case, and a case to be submitted ou an agreed statement of facts. On the two subsequent days were placed cases for trial on issues of fact and issues of law. Counsel construes this section of the statute to require that all cases standing upon issues of fact to be tried by a j ury must be placed first upon the docket, and that cases standing on issues of law must be placed last on the docket, and that no case standing upon issues of law can be properly called for hearing until after all the cases standing upon issues of fact have been-called. We do not so understand the scope of the statute. We are inclined to agree with the views expressed by the district court, that the order of arrangement prescribed is for the setting of each day rather than for the docket as a whole. But be that as it may, a mistake of the clerk in arranging the docket does not vitiate the setting of a case upon any particular day, or render illegal a trial upon the day to which
Further, was there such a showing of diligence and merit as rendered the refusal of the court to open judgment and permit answer and trial erroneous? Upon this the facts are, that it had been the custom of the present clerk, as well as of his .predecessor, in preparing the docket to set down only default cases and uncontested motions for hearing on the first day of the term, and that inadvertently in preparing this docket he had included in the first day’s assignment, with the default cases, this case and the one on the agreed statement; that he had frequently before the commencement of a term sent to non-resident attorneys papers containing the docket as prepared, but failed to do it in this case; that on Sunday morning, July 10th, the defendant’s attorney wrote to the clerk inquiring upon what day the case was set; that he resided at Parsons, a place only twenty miles distant from the county
Upon the merits, the affidavit of the attorney not disputing the fact that the mortgage to the bank was given to secure an antecedent debt, alleged that there were guarantors on that indebtedness; that in consideration of the mortgage, without the consent of the guarantors, the bank extended the time of payment, and thereby released them from all liability; that the mortgagor, Phelps, had become insolvent, and that rely
“And it is further considered and adjudged that the answer interposed by the (jefendant Barnhardt does not state facts constituting any defense to plaintiff’s cause of action; but .the plaintiff, and if said defendant consenting, it is ordered that the said defendant Barnhardt shall within thirty days from the entry hereof, pay the costs of issuing the summons, and of serving same on said defendant Barnhardt, and in addition thereto, all costs made by said defendant, that thereupon said action shall be dismissed as to said defendant; but if he shall fail to make such payment, the action shall stand continued, and the plaintiff be entitled to judgment against said defendant at the next term of the court as on default.”
These, briefly stated, are all the facts bearing upon the questions of diligence and merit. Ought the court to have set aside the judgment and permitted an answer and trial? We have considerable hesitation about this question. If the ■court had sustained the motion, we do not think it could have been held erroneous. There was such a showing as, appealing to the discretion of the trial court, would have justified the
Again, as to the merits, the description in the plaintiff’s mortgage, while it did not specifically include this tract of 6.67 acres, was clearly such as to intimate to any person making inquiry what the mortgage was in fact intended to cover. The bank’s mortgage was simply to secure an antecedent debt, and the guarantor upon that debt was not in fact discharged
Upon the whole case, therefore, our conclusion is that there is not such a showing of an abuse by the trial court of its discretion as justifies us in reversing its ruling. (Spratley v. Insurance Co., 5 Kas. 155.)
The judgment will therefore be affirmed.