27 Kan. 535 | Kan. | 1882
This was an action in the nature of ejectment by defendants in error, (plaintiffs below,) against plaintiffs in error, (defendants below.) Plaintiffs below rested their right for the recovery of the real estate in controversy, upon a sheriff’s deed executed to their grantor, Daniel B. Hadley,, upon the 12th day of November, 1880. It appears from the recitation in said deed, that the sale of the real estate was had upon a purported revival of a judgment, entered April 10, 1880.
The real question involved in the case is, whether the order of revival was void. The judgment was rendered on the 13th day of March, 1872, for the sum of $901.30, in an action then pending in the district court of Wyandotte county, wherein Alfred H. Sowers was the plaintiff, and W. F. Schwartz and George Gruble were the defendants. This judgment became dormant. On February 24, 1880, the plaintiff in said judgment filed his motion to obtain an order to revive the judgment. As the mode of reviving the judgment is the same as that of reviving an action, and therefore must be made within a year after the judgment becomes dormant, unless consent is given, and as no consent was given in this case, it is clear that the order of revivor was erroneously made on the 10th of April, 1880. (Angell v. Martin, 24 Kas. 234; Halsey v. Van Vliet, ante, p. 474.)
Was it a nullity? Sec. 428 of the code prescribes that if the order is not made by consent, notice of the application for such order shall be served in the same manner and returned within the same time as a summons upon the party adverse to the one making the motion, and if sufficient cause be not shown against the revivor, the order shall be made. Where a notice is required, it must be in writing, and shall state the names of the parties to the action or proceeding in which it is made, the name of the court or judge before whom it is to be made, the place where and the day on which it will be heard, the nature and the terms of the order or
The objection by defendants in error to the consideration of the ease-made, upon the ground that it was settled and -signed by Hiram Stevens after his term of office had expired, is not tenable. Sec. 549 of .the code provides: “And in all cases heretofore or hereafter tried, when the term of office of ■the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in .all respects as if his term had not expired.” We perceive ■no reason for holding this section unconstitutional.
There are other questions presented for our consideration, but it seems unnecessary to notice them, in view of the conclusion we have reached.
The judgment of the district court will be reversed, and the •cause remanded with directions for a new trial in accordance with the views herein expressed.