74 P. 604 | Kan. | 1903
The opinion of the court was delivered by
This was an action by the plaintiff in error against Emma Overton individually and as administratrix of the estate of Thompson Overton, deceased, and Earlie Overton, her son. The petition stated that Thompson Overton, a resident of Hamilton county, Kansas, died intestate, leaving personal and real property in that county subject to adminis
“That said defendants, Emma Overton and Earlie Overton, have unlawfully, wilfully and fraudulently assumed the ownership of and converted to their own use the balance of said mortgaged property, which was the property of the estate of said Thompson Over-ton, deceased, and have converted to their own use other personal property of said estate, and are selling the said personal property for the purpose of defrauding the creditors of the estate of Thompson Overton ; that said personal property is now in the immediate possession of the said Emma Overton and Earlie Overton, defendants herein; that said defendants have fraudulently caused said cattle, or a part thereof, to be rebranded in the brand of the said Earlie Over-ton.”
Plaintiff further alleged that he had recovered a judgment against the estate of Thompson Overton, by the consideration of the probate court of Hamilton county, Kansas, which remained due and unpaid. It appears from the entire petition that administration of the estate of Thompson Overton was begun and was duly progressing, there being no allegations that the same had been closed up or any effort so to do made by the administratrix, the time for final settlement not having elapsed. The petition concluded with the following prayer : “Wherefore, the plaintiff prays judgment against the defendants, Emma Over-ton, administratrix of the estate of Thompson Over-
'Subsequently: the'plaintiff-dismissed his action as-’ agáihst Earlie Overton and1 Emma Overton in her in -.; dividual capacity. Upon-tlie ■ statement of Emma.. Overton, as.administratrix, that the claim sued on. was not resisted, judgment was,rendered' against her as. such administratrix- for' the amount of the plaintiff's claim, sustaining the. attachment against the-property of the estate Which had be'en taken there-' under, finding the plaintiff had a first lien theréoñ,.1 ordering the sale of this property and the application’ 'of the proceeds-to the payment.of the judgment rendered and the costs of the action. Afterward, at an. adjourned day of the same term, a motion was filed1 by the administratrix of the estate to vacate this-judgment because it-was void. She had, however,, prior to the filing of this motion,.filed- a petition in error in this .court .seeking to reverse the judgment. This petition in error was pending at the time of the-hearing of the motion to vacate the judgment. ■ The-motion to set aside the, judgment was sustained by-the court, to reverse which ruling the plaintiff -in ’ error brings this proceeding.
We are of the opinion that the judgment against-Emma Overton- as administratrix was void for three ( reasons: (1) No cause of action was stated in the.. petition against her in her official capacity, the wrongs-. complained of haying been committed entirely by Emma Overton and Earlie Overton as individuals ; (2) . if Emma Overton as administratrix had been charged, with a conversion or concealment of the.property the.-. plaintiff would have had.no right to. proceed against h'eiW
It is urged, however, that, because pi’oceedings in error were pending in this court at the time the motion was héard,.the entire matter had: been removed from the jurisdiction of the court below, and therefore, that court could not consider the motion to vacate. The filing of a petition ifi. error, in tMs court does; n’o.t -
The district court was right in setting aside this judgment and its action is affirmed.