Hutchinson Salt & Stock Yards Co. v. Baldridge, 53 Kan. 522

Hutchinson Salt & Stock Yards Co. v. Baldridge

53 Kan. 522 | Kan. | 1894

The opinion of the court was delivered by

Allen, J.:

The principal contentions on behalf of the plaintiffs in error are, (1) that the final judgment of the court was inconsistent with the findings made on the 9th of December, 1889, as against the plaintiffs in error, and that the court then divested itself of jurisdiction over them, and dismissed them out of the case; (2) that the first judgment, rendered on December 9, in favor of plaintiffs in error, is res adjudicata, final and conclusive as to them.

I. It is unimportant whether the final judgment in the action is entirely consistent with the interlocutory decree entered on the 9th of December or not, unless, by its action at that time, the court was divested of jurisdiction over the parties, for, so long as the court retained jurisdiction of the ease for further hearing, it was unquestionably within its power to set aside, change or annul its previous order. It is true that the entry of December 9 shows a finding against the plaintiff’s right to a cancellation of the various instruments, *532and also a finding that the plaintiff has made no case against Wm. Rickards, trustee, and dismisses the bill as to him; but at the same term of court, and on a further hearing, the court orders

“That an account be taken between the plaintiff and the defendants W. Curtis, the Hutchinson Salt & Stock Yards Company, G. A. Walkup and William Rickards of the interests of the plaintiff in the foreclosure money paid and to be paid by the defendant the Hutchinson Salt & Stock Yards Company to the defendant W. Curtis, and in the purchase money paid by the defendant G. A. Walkup to the defendant W. Curtis,”

and continues the case to the next term of court for that purpose. This order, being made at the same term of court and while the former order was still under the control of the court, had the effect to set aside any portion of the first order in conflict with it. (In re Wolf, 52 Kas. 366.)

It was unquestionably the intention of the court to hold all the parties named in court, for the purpose of adjusting their rights as they might be determined on a full accounting. That this was the understanding of all parties to the case, as well as of the court, is confirmed by the recital in the journal entry of the 13th of April, 1890, which shows that the case came on to be further heard pursuant to the adjournment between the plaintiff and all said defendants except the Omaha Packing Company. If, as this journal entry shows, all of these parties were there present asserting their rights and asking the court to protect them, they are in no position to deny the jurisdiction of the court.

It is especially urged that there is error as to Rickards, and that there was a clear and unqualified dismissal as to him. An examination of the record before us fails to disclose what interest in or claim upon any of the property Rickards had. In none of his pleadings does he make known what his rights are. The court is not required to assume that he has rights which he fails to make known.

II'. The claim that the first order was an adjudication of *533the rights of the parties is without foundation, and is probably an afterthought of counsel. No pleading was filed setting up a former judgment in bar of the plaintiff’s rights. If such a pleading had been filed, we think the record fails to support the claim. There was no final determination of the case, except as to the Omaha Packing Company, in December. It is suggested in the brief, though not argued at length, that the pleadings do not warrant the judgment which was in fact rendered. The action was in its nature equitable. The plaintiff sought to recover a half interest in the lands involved, and to set aside the various written instruments affecting the title to it. The court, for reasons not disclosed to us, saw fit to refuse plaintiff the full relief he asked, but granted him an accounting, and did ascertain that the sum of $8,103.10 was due him from Curtis on account of the dealings with reference to this land, and that he was entitled to a first lien for that sum as against all the defendants. None of the evidence being preserved in the record, we cannot say that the court erred in its conclusions. We can imagine various possible states of proof which would amply warrant the judgment finally rendered by the court, and we must assume, under such a record as is now presented, that all the facts necessary to uphold the judgment were proven.

The judgment is affirmed.

All the Justices concurring.