111 Kan. 551 | Kan. | 1922
The opinion of the court was delivered by
This was an action to annul and set aside a judgment obtained against Champion D. Kircher by his mother, Priscilla Kircher, rendered on April 4, 1918. The judgment determined that a deed which had been executed by the mother to the son on December 12, 1904, was null and* void, and it was decreed that it be discharged of record.
In that action Priscilla Kircher alleged that she had been induced to execute the deed through the importunity and misrepresentations of her son, who was living with her and to whom she had entrusted the management of her business affairs. She alleged that she was
That action was pending from August 23, 1915, until about April, 1918. In the instant case the testimony offered to set aside the judgment is based largely on the ground that Champion D. Kircher was of unsound mind and unable to make a defense in the former action in which the deed was set aside. His wife, who was joined with him as a defendant, had been adjudged insane and was confined in the state hospital. His mother, who brought the original action in which the judgment sought to be set aside was obtained, became insane before the judgment was rendered and has since died. The judgment in favor of the guardian of the mother was rendered by default as against Champion D. Kircher, but his wife was represented by her guardian. The judgment recites that the plaintiff introduced her evidence in support of her allegations of misrepresentation and fraud and that the defendants introduced no
It appears that Champion D. Kircher employed' attorneys to represent him when the action was brought, but they had withdrawn from the case a year prior to the entry of judgment. In the latter part of the year 1915 there were negotiations between the parties looking to a settlement of the original controversy, but it was never consummated. In behalf of Champion D. Kircher, it is said that after the original action was begun, his wife sued him for divorce and, upon a charge that the children were neglected, they were taken from both parents and committed to another. This was followed by a proceeding in which his wife was adjudged insane, and it was claimed that all these circumstances affected his mentality and rendered him unfit to understand the action brought against ■ him or the necessity for a defense. The evidence as to his competency shows him to have been a preacher, and a peculiar and eccentric man. The probate judge and sheriff stated that they hardly thought he was normal. One of his attorneys testified that they had great difficulty in making him understand the nature of the action and that there was incoherence and inconsistency in the statements he made to them. Some of his witnesses said that he was abnormal only on the topics of religion and women, while others said they thought there was a real unsoundness of mind.
The question presented to the trial court was whether the plaintiff, against whom the judgment was rendered, had shown that he was prevented from making his defense by unavoidable casualty or misfortune. It was mainly a question for the trier of the facts and it has been determined against the plaintiff. There was much testimony produced tending to show the abnormality of plaintiff and a lack of appreciation of the importance of the litigation with his mother. He did employ attorneys, who had difficulty in making him understand the nature of the case and the possible result of it. They represented him for about two years while the case was pending and presented a number of motions in it, but finally withdrew from the case after giving him ample notice of the withdrawal, and advising him that it was essentially necessary that he should employ others. This he neglected to do, although the action was not tried
“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.” (p. 487.)
The ground upon which counsel for plaintiff mainly relies for the. vacation of the judgment is the incompetency of- plaintiff and his lack of appreciation of the course of litigation. It was shown that he is peculiar and eccentric, and it is true that a number of distracting and distressing circumstances occurred in his life while the litigation was pending. Some witnesses regarded him to be of unsound mind, while others thought him to be sane but erratic. His mental condition was peculiarly a question for the trial court, which had much better opportunity than this court of determining his sense of responsibility and competency to make a defense. It has determined that these afforded no excuse for his negligence and no ground for the vacation of the judgment.
Within the rule which governs us in the review of a decision of a trial court on a question of fact, its judgment must be affirmed. -