4 Kan. App. 410 | Kan. Ct. App. | 1896
The opinion of the court was-delivered by
This action was commenced on the 14th day of April, 1893, in the district court of Sedgwick county, by J. V. Daugherty against D. W. McCalla, Lou K. McCalla, and Barbara A. McCalla, to set aside a certain conveyance of real estate and subject the land to the payment of a certain judgment, recovered before a justice of the peace on the 21st day of January, 1893, in favor of the plaintiff below and
After the commencement of this suit and the filing of the cross-petition of D. M. Tipton and the answer of D. W. McCalla and Lou K. McCalla, D. W. McCalla
The record in this case is quite voluminous, and numerous errors are assigned, but in the view we take of this case it is unnecessary for us to consider all of the errors specified. The court having found against the plaintiff below, and no objections or exceptions having been taken by him, that part of the case has been finally disposed of, and it will not be necessary to refer to the issues between the plaintiff and defendants McCallas. On the trial of the case, the defendants below objected to the introduction of any evidence under the cross-petition of D. ,M. Tipton, for the reason that said cross-petition did not state facts sufficient to constitute a cause of action in his favor and against the defendants below. The contention of the plaintiffs in error is that the cross-petition shows that the conveyance complained of as fraudulent was executed on the 31st day of August, 1889, and the cross-petition of D. M. Tipton was not filed until the 21st day of April, 1893, and there is no allegation in the cross-petition showing that the fraudulent acts complained of were not discovered until some later day; that since more than two years had elapsed between the fraudulent transaction complained of and the commencement of this action, the action was barred by the statute of limitations. Subdivision 3 of section 18 of the code of civil procedure, fixing the time in .which an action may be commenced, provides that an action for relief on the ground of fraud shall be commenced within two years, and that the cause of action in such cases shall not be deemed to have accrued until the discovery of the fraud.
The cross-petition of E. M. Tipton showing that more than two years had elapsed since the fraudulent transaction complained of, and there being no allegation that the fraud was discovered at some later period, so as to take the case out of the statute of limitations, the court should have sustained the objections to the evidence under the cross-petition. The attention of the court and of D. M. Tipton having been duly called to the insufficiency of the cross-petition to state a cause of action, and no amendment having been offered or proposed to said cross-petition, judgment should have been rendered for the plaintiffs in error.
The judgment of the district court is reversed, and the case remanded, with directions to render a judg