37 Kan. 305 | Kan. | 1887
The opinion of the court was delivered by
The plaintiff undertakes to procure a vacation of the judgment and a new trial on the ground of fraud alleged to have been practiced by Lovejoy in obtaining the judgment, and because of the neglect of his own attorney in failing to appear and defend at the trial, and also in failing to notify him when the trial would occur. It is manifest that the plaintiff sought to bring his case within the provisions stated in subdivisions 4 and 7 of § 568 of the code. The statute prescribes that proceedings to vacate a judgment on the grounds mentioned “shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying is defendant.” (Civil Code, §570.) The petition fails to conform to these requirements, and hence the demurrer was rightly sustained. It fails to set forth the petition, answer, or judgment, in the original action, although reference is made to them. The answer, if any was filed, may or may not have stated a defense. It may have substantially admitted the allegations of the petition, and thus have rendered the presence or absence of Mulvaney unimportant. Not only has he failed to state what the answer was, but he has omitted the more important allegation that he had an existing and valid defense when the present action was begun. This is essential.
The judgment of the district court will be affirmed.
