101 Kan. 612 | Kan. | 1917
The opinion of the court was delivered by
This action was brought to set aside a judgment. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
In 1904 the defendants, Georgiana Sawyer, Electa A. Sawyer, Lemuel Sawyer, and Eva M. Lembke, obtained a judgment against the plaintiff and others quieting title to certain real property in Topeka. The judgment was obtained on
The court made exhaustive findings of fact. Two of the conclusions of law were as follows:
“The defendants were not guilty of fraud in fact or intentional wrong in securing the judgment mentioned in the fifty-eighth finding of fact, case No. 22,847, and the plaintiff herein is barred from recovery in this action by said judgment.
“The defendants are entitled to have their title to the real estate in controversy quieted against plaintiff and to a judgment for costs.”
1. The plaintiff’s first complaint is that the court erred in the admission of evidence. Georgiana Sawyer, one of the defendants, was permitted to testify to conversations that occurred years ago between the mother and the stepfather of the defendants. Those conversations concerned the property then owned by the mother, the stepfather, and the defendants in this action, and certain exchanges of property that took place about, the time of the conversations. The mother and the stepfather were dead at the time this action was commenced.
In the attack on the judgment, the title to the real property was not in issue. That title had been adjudicated by the former judgment. If the plaintiff, in his attack on the judgment, sought to question the title of the defendants, his attack was a collateral one and could not be maintained. (Schenck v. School District, 100 Kan. 389, 164 Pac. 169.)
The plaintiff’s petition properly joined several causes, of action: one to set aside the judgment; another to determine the title to, and recover the possession of, the real property; another to quiet title; another to recover judgment for rents
2. The testimony concerning the conversations between the -mother and stepfather was objected to on the ground that the witness was incompetent under section 320 of the code of civil procedure. At the time these objections were made it did not appear that the witness was a party to any of the conversations or that she took any part in them. On cross-examination the witness once or twice testified in substance that her knowledge of the transactions concerning which she was testifying was based on what her mother and stepfather had told her. The plaintiff then moved to strike out the testimony of the wit
“The court: Did you hear your mother and your stepfather talk it or not? A. Yes, sir.
“The court: Or was your information derived from statements made to you by your stepfather or by your mother; which way was it? A. I heard them talking about it in the home, at the table, in the family.
“The court: At the time of the transaction they would talk it over? A. Yes, sir.”
From the examination by the trial judge, it appeared that the witness was testifying to conversations between her mother and stepfather and to facts that the witness had learned during those conversations. She was competent to so testify. (Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748; Harris v. Morrison, 100 Kan. 157, 161, 163 Pac. 1062.)
3. The plaintiff’s last complaint is an attack on the affidavit for publication notice. He contends that the statement contained therein, that the plaintiffs in the former action were the legal and equitable owners of the property, was false. The plaintiff contends that belief in the truth of that statement, as contained in the affidavit, was not sufficient to avoid a charge of fraud. If his contention were true, litigation on any particular question would never cease. Litigants. are often mistaken — honestly mistaken — positively and absolutely mistaken —but such mistakes do not make their conduct fraudulent. The court’s conclusion on this fact was fully warranted by the evidence. The evidence abstracted by the plaintiff and the findings and conclusions of the trial court established that the defendants, in this action, were not guilty of any fraud in procuring their judgment quieting title to the property in controversy.
The judgment is affirmed.