McPherson v. Kingsbaker

22 Kan. 646 | Kan. | 1879

The opinion of the court was delivered by

Brewer, J.:

Two questions are presented: Did the court ■err in overruling the demurrer to the petition?. Ought the -motion to set aside the judgment, and for a new trial to have ■been sustained?

The action was to set.aside a deed as executed in fraud of .plaintiffs’ rights as creditors; and the objections made to the petition are, that it fails to allege that plaintiffs were creditors at the time of the execution of the deed, and also that the allegations of fraud are in general terms. Neither objection can be sustained. It is true the petition lacks a spe-cific allegation that the plaintiffs were creditors at the date ■of the deed, and also true that the deed antedates the judgment a little — the one January 5, 1878, and the other March 12, 1878; yet the interval is so slight as to create a strong probability that the plaintiffs were in fact creditors at the ■earlier date. But the allegation is also directly made that the deed was executed for the purpose of hindering, defrauding and delaying plaintiffs, and a conveyance is void even against a subsequent creditor, if made with a specific purpose ■of defrauding him.

Ordinarily, mere generality in the allegations is to be remedied by motion, and not by demurrer; and where all essential facts are stated, although in general terms, a demurrer will not lie. Here we see nothing in this respect to justify sustaining the demurrer. The motion to set aside the judgment and for a new trial was on the ground of accident and .surprise. By reason of the absence of defendant’s attorney, jio answer was filed or defense made. Conceding that the showing is sufficient to excuse the defendant, and to cast the-entire blame upon the attorney,- and still we think the ruling-of the district court must be sustained. With her motion was tendered an answer. This answer was not verified, nor is there in the affidavits filed in support of the motion.any allegation that such answer was true. In her affidavit, defendant swears she believes she has a good defense to the action, but whether it is the defense she tenders in her answer or not,'does not appear. Now, before a party against whom a judgment is rendered by default can have that judgment, set aside and be let in to answer, the court must be advised, of the defense which is to be presented, and assured by affidavit or other testimony that such defense is at least believed-, to be true. Otherwise the defendant might delay and put the plaintiff to costs without any just defense to his claim-And the absence of counsel for defendant at -the time of trial, or any other accident, might be productive .of great benefit to defendant.

The judgment will be affirmed.

All the Justices concurring.