The opinion of the court was delivered by
On March 3, 1906, Henry C. Minard instituted an action against Robert Fowler and the Garrett Biblical Institute to recover a tract of land. Personal service was obtained on Fowler, and constructive service upon the institute. No answer was filed by either defendant, and on June 6, 1906, judgment by default was entered deciding that Minard was the owner of the land and awarding him possession of the same. On September 7, 1906, the institute applied to the court to open up the judgment and allow it to make a defense, alleging that it never had actual notice of the case nor opportunity to defend against it.
There is a further contention by appellant that the judgment in ejectment should be annulled because the allegations of Minard in his petition were untrue. The truth of these averments was directly involved in the ejectment action and was determined by the judgment in that case. The code permits the setting aside of a judgment for fraud in obtaining it — that is, fraud extrinsic or collateral to the issues tried and decided—
“The contention in this case has been, and now is, that the averments in the petition of Caroline Matthews with reference to title were false. Marks now denies that which by his default Dolloff admitted. The very object and purpose of judicial proceedings is to determine the truth or falsity of the allegations of fact of the parties to controversies in the courts, as well as their .rights under the law applicable- to the facts as finally found.- When summoned in an action, the defendant is called on to challenge the truth of any statement of fact which he denies, and the correctness of any claim of right under the law applicable to the facts alleged. If it should be held that a judgment by default is binding only when based on a truthful pleading, there would be very little advantage in making any appearance in actions relating to land unless some present right to use the property should be threatened;for nothing would be lost by the default, afid the same defense could be made at any time thereafter.” (Page 233.)
The same question was considered at length and supporting authorities cited in Plaster Co. v. Blue Rapids Township, 81 Kan. 730. The view adopted there was that when a party has been summoned into court and has had an opportunity to contest an issue which goes into judgment, whether he avails himself of the opportunity or riot he is not entitled to have the judgment set aside and be granted another trial of the same issues merely because the facts alleged in the
The judgment of the district court is affirmed.