2 Kan. 333 | Kan. | 1864
By the Court,
In October 1858, George bought of Hatton a tract of land in Donophan County and executed the note sued upon for the purchase money, at the same time taking from Hat-ton a bond for a conveyance upon payment of the note. On April Y, 1860, eighty-one dollars of the note and some interest being unpaid, Hatton having tendered a deed, brought suit in the District Court for Donophan County to recover a judgment for the money, and to subject the land to its payment, setting out substantially the foregoing facts. George filed a demurrer, assigning as the ground thereof, that the petition did not state facts sufficient to constitute a cause of action. At the May term, 1860, judgment was rendered against George, and an order made for the sale of the lands, but misdescribing them. At the «ame term and on the same day, another entry was made, showing that the demurrer was “ stricken out ” before the judgment above described was' rendered. At the October term, of the same year, the journal entry of the judgment was, on motion of the plaintiff corrected, nunc pro tunc, so as to properly describe the land. On the 16th of August 1862, Hatton filed a motion to vacate the judgment, 1st, because the deed tendered was .insufficient. 2d. The judgment was irregularly obtained. 3d. The judgment was for relief, differing from that endorsed upon the summons. 4th. Because the judgment was rendered without disposing of the demurrer, and 5th, the service of the summons
The petition in error is filed here to reverse the judgment on two grounds, to-wit: The Court erred in striking out the demurrer, and also erred in overruling the motion to vacate.
The whole record shows that the demurrer was “ stricken out ” before the judgment was rendered, but why it was “stricken out” and not overruled, we are not advised. Nor is it material which way it was disposed of, or whether it was disposed of at all. If the party interposing it did not call it up, it might have been disregarded wholly, and yet no error appear on the record. And in addition to this, there was no exception to the action of the Court in striking it out.
This objection is not well taken.
It is said that the Court erred in overruling the motion to vacate the judgment. Let us examine the grounds of this motion: “1st. The deed tendered was insufficient.” The record don’t show what the deed was; and if it did, this objection might have been a good defense upon the trial had it been set up in an answer, but would not be a good ground for vacating the judgment which was rendered upon default of answer, and under an allegation of the petition that a good and sufficient deed was tendered.
“2d. The judgment was irregularly obtained.” This is very indefinite, so much so that we can not determine what it refers to. No irregularities are pointed out, and there are none so glaring as to attract our attention. So that the plaintiff will practically lose the benefit of this objection.
“ 3d. The judgment was for relief different from that endorsed upon the summons.” This was not an action for the “ recovery of money only,” and hence there need not have been an endorsement upon the summons. Rut in point of fact it was endorsed with the amount the plaintiff below expected to recover, and the time and rate of inter?
“ 4th. The judgment was rendered without disposing of the demurrer.” This is not sustained by the record. That shows that the demurrer was in fact, disposed of before the judgment was rendered, but an entry to that effect had not been made upon the journal. During the same day, an entry showing that fact was made, and the Court had a perfect right to make its minutes speak the truth. -
" “ 5th. The service of the summons was defective.” After the defendant appears and files a pleading, it is rather late to object to the service. If a party appears it is no matter whether there was any attempt at service.
Added to all this, the motion was not made until nearly two years after the judgment was rendered; three or four terms of the Court intervening. None of the grounds assigned in the motion are such as would authorize the Court to vacate the judgment upon motion after lapse of two years. And moreover, there was no showing of a valid defense to the action, or indeed, a defense of any kind.
Not being able to agree with the plaintiff that the acts of the Court below of which he complains - in his petition', in error, were erroneous, we are compelled to affirm the judgment.
