68 P. 651 | Kan. | 1902
The opinion of the court was delivered by
This case comes to this court to review a judgment of the district court entered against plaintiff in error upon the sustaining of demurrers to his amended petition for injunction to restrain the collection of a judgment entered against him by default in the district court of Wyandotte county, wherein one H. F. James was plaintiff, and one H. H. Walkup and plaintiff in error were defendants, which judgment was transferred to defendant in error the Plano Manufacturing Company.
The facts alleged are, that plaintiff in error, a citizen and resident of Rice county, had executed to the Plano Manufacturing Company, a foreign corporation, citizen and resident of the state of Illinois, his promissory note ; that while this note was still owned and held by the manufacturing company a settlement of the indebtedness evidenced thereby was made between McConnell and the manufacturing company, which settlement, it is alleged, constituted a
Upon this state of facts, counsel for plaintiff in error make two contentions : (1) That the judgment sought to be enforced is void for want of jurisdiction in the district court of Wyandotte county over the person of plaintiff in error to render it; (2) that the judgment is absolutely void for fraud practiced in its procurement. If either or both of these propositions, considered separately or together, are tenable, the action of the trial court in overruling the demurrers lodged against the amended petition was erroneous; if not, the judgment must be affirmed.
All the facts, well pleaded, are admitted by the demurrers. Fr<fcn these facts, as alleged, we have no doubt that the district court of Wyandotte county was imposed upon to the advantage of the manufacturing company, and rendered a judgment it would not have rendered had McConnell known the facts now pleaded and appeared therein and disclosed the same. The question here presented is, Does plaintiff in error show himself entitled to the relief now sought in this action? The relief asked is equitable. The fraud of .the company stands admitted. Is the court powerless to grant the relief? This power is unques
It is the general policy of the law to permit defense to be made in every action, and in every transitory action to accord the defense the exemption from litigation except in the county of habitation or residence of the defendants, except where this policy contravenes some positive statute. It is also the policy of the law to discountenance fictitious litigation and compel the prosecution of every action by the real party in interest. Under section 55, it is clear that the action in which the judgment sought to be enjoined was rendered could not have been brought against Walkup, a citizen and resident of Missouri, and absent from the state of Kansas, in the district court of Wyandotte county, for he did not reside and could not be summoned therein. The only statutory or other power that could compel plaintiff in error to submit himself to the jurisdiction of the district court of Wyandotte
It is contended, however, by counsel for defendants in error, that the case of Hendrix v. Fuller, 7 Kan. 331, is decisive of this case. We think not, and for two
Again, there is no intimation in that case that any fraud of any character was intended or practiced upon the defendant, non-resident of the county where the suit was brought, or upon the court in which the suit was pending; indeed, the record makes a showing quite to the contrary. If in the present case James .had been in good faith' the real party in interest, and Walkup had in good faith indorsed or guaranteed the ■note, and had been actually present in Wyandotte county at the time he acknowledged service of the ■summons, that he might have been summoned within the jurisdiction of the court, although he was not so summoned, and although a resident of a foreign state, the cases would be parallel. However, the cases differing in essential features, we hold that one not controlling here. We are further of the opinion that the doctrine of that case should not be extended. Nor are we of the opinion that defendants in error in this equitable action, in view of the facts admitted in the record, are. in position to urge a liberal or strained construction of the above statutory provisions in their
It follows that the judgment must be reversed, and case remanded with instructions to overrule the demurrers to the amended petition.