101 Kan. 482 | Kan. | 1917
The opinion of the court was delivered by
The plaintiff, J. É. Gooden, brought this action against the defendant, C..E. Lewis, to vacate a judgment theretofore obtained by Lewis against Gooden.
In this action the petition gives a synopsis of the prior case of Lewis v. Gooden, Which was an action on two promissory notes and for the foreclosure of a chattel mortgage on a threshing outfit, separator, engine, tank, etc. The action was begun September 24, 1915, and an attachment for the mortgaged chattels was issued and they were levied upon by the sheriff. The answer of Gooden was due on October 20, 1915, but he made default. On January 3, 1916, judgment by default was rendered against Gooden, and the chattel mortgage was foreclosed and the property sold to satisfy the mortgage and the attachment. On January 31, 1916, the sheriff sold the property after proper order of sale and publication, and made his return on the day of sale.
The present action was filed on March 29, 1916, under section 596 of the civil code (Gen. Stat. 1915, § 7500) and on the statutory ground of “unavoidable casualty • or misfortune,” which prevented him from defending in the prior case. Gooden pleaded that in August, 1915, he had broken his leg and was confined to a hospital in Hutchinson until October 3, when he returned to his home, but was then unable to walk or attend
“That on October 20th, 1915, the answer day in said action, this plaintiff came to Greensburg [the county seat] in an automobile, assisted by an- attendant, to see counsel and have answer filed or defense made, but was unable to climb stairways to offices, or to the court house, and on that occasion saw counsel, and understood that counsel would arrange to have said case attended to or have plaintiff notified when to give same further attention. But that counsel so consulted failed to file any answer or to arrange to have same done or to have any notice given to this plaintiff as to what further attention was required of him or when, and that this plaintiff relied upon said counsel attending to said matter for him; that afterward, and on January 3d, when said matter came up for trial, and upon learning df that fact, this plaintiff being unable to attend to the same, had a friend, one Chas. Tanner, phone to said counsel to attend to said cause and procure a continuance till such time as plaintiff, defendant in said action, could be able to attend, and this plaintiff relied upon said request being granted. And further, at said time, January 3d, 1916, the wife of this plaintiff had but the day prior been confined, and plaintiff being unable to procure other help was compelled by the emergency to remain in attendance upon his wife on the 3d day of January, 1916. Thereby and therefore he did not and could not attend in person to said litigation on the 3d day of January, 1916, but relied upon an answer' being filed and said cause continued to some other date for the reasons above set forth.”
Other allegations of Gooden’s petition were, that the chattel mortgage on the threshing outfit was void because his wife had not signed the mortgage and that the property was his means of livelihood; that the facts in Lewis’ affidavit procuring the attachment were false and the evidence supporting the attachment was false and fraudulent; and Gooden’s petition categorically traversed all the statutory grounds under which an attachment might issue.
The defendant, Lewis, demurred to this petition, and the overruling of the demurrer gives rise to this appeal.
The pertinent clauses of the civil code, section 596, under which plaintiff sought to maintain this action-reads:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made. ...
“Fourth, for fraud, practiced by the successful party, in obtaining the judgment or order.
“Seventh, for unavoidable casualty or misfortune preventing the party from prosecuting or defending.”
“A party may have a good defense to an action, but if he fail to make such defense when the case is called for trial, he will not be permitted to come in weeks afterward and say that the judgment was wrong and ought to be set.,aside, simply because he had a good defense.” (Iliff v. Arnott, 31 Kan. 672, 674, 3 Pac. 525; Vail v. School District, 86 Kan. 808, 811, 122 Pac. 885.)
Neither was the attachment affidavit fraudulent. It might have been untrue. Gooden might have shown its falsity; he might have beaten the attachment if he had assailed it. The validity Of the attachment and the affidavit and other evidence supporting it were in issue and the judgment determined the propriety of the one and the truth of the other. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; 15 R. C. L., p. 705.) It would be an intolerable annoyance to a litigant diligently prosecuting his cause with the aid of attachment proceedings if a defendant might waive a contest over the regularity of the attachment and waive a contest over the truth of the affidavit, and of the evidence upon which it was sought to be maintained and let judgment be taken against him by default, and later in an independent action be permitted to litigate the very essence of-the matter about which he had already waived all contest. It has often been declared by this and other courts that there are two ends in view in every lawsuit, the first and more important being that it be decided right, but the second, which is only less important than the first, is that it be decided, so that there may be an end of litigation. (Alexander v. Clarkson, 100 Kan. 294, 297, 164 Pac. 294.)
Did the fact that the plaintiff had broken his leg and the other incidents pleaded by him constitute an “unavoidable casualty or misfortune” preventing him from defending the action, under the terms of the statute? A majority of the
- Plaintiff’s brief intimates that this proceeding was begun within the term at which the judgment was rendered, but this is an independent action — not a motion in the prior case — and it is not shown that the trial court took any judicial cognizance
The rule is settled that a litigant can not invoke the code provision for relief on the ground of “unavoidable casualty or misfortune preventing a defense” where he has been manifestly negligent, guilty of laches, lacking in diligence, careless, hurried, or mistaken in the preparation of his defense, nor on account of the negligence of his attorney. (Daniel Hill v. Elias Williams, 6 Kan. 17; Winsor v. Goddard, 15 Kan. 118; Mehnert v. Thieme, 15 Kan. 368; Welch v. Challen, 31 Kan. 696, 3 Pac. 314; Weems v. McDavitt, 49 Kan. 260, 30 Pac. 481; Holderman v. Jones, 52 Kan. 743, 34 Pac. 352.)
There is not much analogy between the facts pleaded in this case and those in Gheer v. Huber, 32 Kan. 319, 4 Pac. 290.
We note the intimation that the lawyer to whom plaintiff spoke about his case on the day his answer was due and to whom he attempted to send a telephone message through the medium of a friend on the day judgment was taken is one of appellant’s counsel here. This could only have some significance attached to it if the pertinent facts had been pleaded so that they'might have been tested by the demurrer along with the other allegations of his petition.
The demurrer to the petition should have been sustained.
Reversed.