26 Kan. 148 | Kan. | 1881
The opinion of the court was delivered by
On April 8, 1880, plaintiffs commenced their action in the district court of Brown county against Quintus S. Seip, and Elizabeth and Anna M. Seip, children and heirs-at-law of Francis Seip, deceased, to recover upon certain promissory notes executed by Quintus S. Seip and Francis Seip, and to foreclose a mortgage given by Francis Seip to secure the payment of the promissory notes. The defendants being non-residents of the state of Kansas, service
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made; . . . Second, by a new trial granted in proceedings against defendants constructively summoned as provided in section seventy-two.”
“The party seeking to vacate or modify a judgment or order, may obtain an order suspending proceedings on the whole, or part thereof; which order may be granted by the court, or any judge thereof, upon its being rendered probable by affidavit, or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified. On the granting of any such order, the court or judge may require the party obtaining any such order to enter into an undertaking to the adverse party to pay all damages that may be caused by granting of the same.”
The judge ought perhaps to have required a bond for the payment of all damages, instead of one for the payment of costs, but as both parties were present, and as no exceptions were taken, nor was the attention of the judge directed to the words of § 573, we think the error was waived. At least, the error or irregularity in the order did not affect the substantial rights of the party complaining. ' The order was to be continued for less than two months; was merely to suspend the proceedings under the judgment, until a hearing could be had upon an application to open the same, and the conditions attached to the order were sufficient, although somewhat irregular, to secure the rights of all parties. Having the parties before him, sufficient appears by the record and affidavits, on the application to open the jndgment, to authorize the order granting the stay of proceedings until the next term of the court was held, and the parties had an opportunity to present their application at court. (Downing v. Reeves, 24 Kas. 167.)
The order of the district judge will be affirmed.