108 Kan. 580 | Kan. | 1921
The opinion of the court was delivered by
The action, which was for partition, was commenced May 6, 1919. Carl Erickson, one of the defendants, filed an answer stating that he was the only heir of his wife, Amanda Carolina Erickson who, in her lifetime, had obtained a judgment against the plaintiffs and against the other defendant, Peter Adrian Larson, quieting her title to the real estate. The reply alleged that the judgment in favor of Amanda Carolina Erickson was obtained on publication service only, and had been opened up and another trial had in which judgment was rendered in favor of the plaintiffs establishing their interest in the real estate.
It appears that on March 2, 1916, Amanda Carolina Erickson, as plaintiff, brought a suit in the district court of Wyandotte county against all the plaintiffs in the present action and against Peter Adrian Larson, one of the defendants herein, to quiet her title to the real estate in controversy. The only service was by publication, and on May 3, 1916, judgment was rendered in favor of Mrs. Erickson as prayed for in her petition. On April 6, 1917, .Mrs. Erickson died intestate, leaving as her sole heir, Carl Erickson. An administrator of her estate was duly appointed by the probate court of Wyandotte county. All debts were paid and the estate was fully administered, and at the end of two years from the time of his appoint
The proceedings to open up the judgment were void for two reasons. First, because the order was made after the death of
Even a proceeding for the sale of real estate om execution, if issued after the death of the plaintiff, has been held void. (Seeley v. Johnson, 61 Kan. 337, 59 Pac. 631; Denny v. Ross, 70 Kan. 720, 79 Pac. 502.) It was said that all proceedings upon a judgment which is dormant are void. Where two parties had obtained a judgment and one died, it was held that revivor was necessary before further proceedings could be taken, and that an execution issued without revivor was void. (Newhouse v. Heilbrun, 74 Kan. 282, 86 Pac. 145.) Even where a nominal plaintiff, who had no beneficial interest in the judgment died, it was held that the judgment became dormant. (Updegraff v. Lucas, 76 Kan. 456, 93 Pac. 630.) It has been held that the provision that a judgment must be revived within a year is a limitation on the right, not the remedy, and a court has no power to revive the judgment without consent. (Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620.)
It is argued that upon the death of Mrs. Erickson her property “was thereby transferred to her husband and heir,” and
For another reason the plaintiff cannot prevail. Before a judgment can be opened the statute provides that notice must be served upon the adverse party. No notice was given as provided by the statute. Notice to the administrator of the deceased person would not be notice such as required by the statute, nor could a notice handed to the person who acted as attorney for Amanda Carolina Erickson in her lifetime constitute valid service. On the death of Mrs. Erickson the relation of attorney and client between herself and her counsel ended. The attempted service by publication on Carl Erickson could not be held to be a compliance with the provisions in the statute for notice. He was not a party to the original action in which the judgment sought to be opened was obtained. His wife brought that action against the present plaintiffs as defendants and against Peter Adrian Larson.
It follows, therefore, that the district court had no jurisdiction to make any order opening up the judgment in the original case, and that the subsequent proceedings taken in that action were void, first, because there was no revivor of the original judgment, and second, because there was no notice such as required by the statute which permits judgments to be opened up when obtained on service by publication. The judgment is reversed and the cause remanded with directions to enter judgment in favor of the defendant, Carl Erickson.