25 Kan. 645 | Kan. | 1881
The opinion of the court was delivered by
This was an action brought by George M. Noble against Janet Butler and W. X). Disbrow, sheriff of Shawnee county, Kansas, to perpetually enjoin the collection of a balance due on a certain judgment, rendered in favor of Mrs. Butler, and against the plaintiff and others. The facts of the case appear to be substantially as follows:
In March, 1873, the plaintiff Noble and the defendant Mrs. Butler resided in Topeka, Kansas. Mrs. Butler had money which she desired to loan, and Noble acted as her agent and attorney in loaning and collecting the same. About March 22, 1873, the plaintiff made a loan for the defendant of $1,030 to Samuel E. Craig, taking his note, secured by a
The plaintiff alleged the foregoing facts in his petition, and the defendant demurred thereto, and the court below sustained the demurrer; to which the plaintiff excepted, and now presents the question of the sufficiency of his petition to this court.
We think the petition is insufficient. It does not state facts sufficient to constitute a cause of action. The question presented to us is, not merely whether a court of equity may relieve a plaintiff from the consequences of a wrong, where the defendant is undoubtedly guilty of committing the wrong, and the plaintiff appears to be in pari delicto; nor is the question presented to us merely whether a court of equity may relieve a plaintiff from the consequences of his contract, where the contract is against law, or against public policy, or against public morals, and is made principally for the benefit of the defendant, and not especially for the benefit of the plaintiff, where the plaintiff seeks the relief; but the question presented to us embraces all these particulars, and more, too. This other question is also presented to us, whether a court of equity will relieve a party from the consequences of a judgment, which the party has, through the most unaccountable negligence, allowed to be entered agajnst him, and to remain-standing against him for over three years, before he takes any steps to relieve himself therefrom. The plaintiff says that during that time he did not know that the judgment had been rendered against him. This is unaccountably strange, considering his connection with the parties, and with all the proceedings in the case. He was during all that time the agent for the plaintiff. He was one of the defendants in the case. He probably drew up the petition himself. It was drawn up in the name of himself and his former partner; as attorneys in the case. He had the execution issued in the case; he purchased the property of his co-defendants for the plaintiff when
Under the circumstances of the case, as they are now presented, we think the plaintiff has no remedy. For the purposes of this case, it might be admitted that, if the plaintiff’s wrong, in uniting with the defendant in devising a scheme ibivthejmi'pose of procuring usurious interest and protest fees and damagES'-ftom Craig, was the only thing in the way, then that he might be relieved by a court of equity from the consequences of such wrong. It might also, for the purposes of this case, be admitted that, if the contract entered into between the plaintiff and the defendant was the only thing in the way, then that the defendant might be relieved from the consequences of that contract. And it might also be admitted that, if the judgment rendered against the defendant stood alone, not connected with any wrong, but simply rendered because of the negligence of the plaintiff in not making any defense to the action in which such judgment was rendered, that the
The judgment of the court below will be affirmed.