Pease v. Reser, No. 27,054

No. 27,054 | Kan. | Jan 8, 1927

The opinion of the court was delivered: by

Marshall, J.;

The plaintiff commenced this action to set aside a judgment rendered against him in favor of the defendants in an action pending in the district court of Anderson county in which E. Reser was plaintiff and C. C. Pease and others were defendants. Judgment was rendered in favor of the defendants and others who were intervenors. The plaintiff appeals.

The judgment which the plaintiff sought to have set aside canceled an oil and gas lease held by the plaintiff and Pelatiah Pease. The present action was commenced under section 60-3011 of the Revised Statutes. The petition to set aside the judgment alleged that the plaintiff, C. C. Pease, had a good and valid defense to the causes of action on which judgment was rendered against him, which defense had been set up in an answer filed in that action; that the cause was tried without his knowledge and in his absence; that he was thus prevented from showing his defense; that he had employed John J. Jones, an attorney at law, to conduct his defense; "that John J. Jones had agreed to notify the plaintiff of the time when the action would be tried; that John J. Jones mailed a letter to the plaintiff at his post-office address, notifying him of the time when the action would be tried, but that the letter was never received by the plaintiff. In the present case, answers were filed by those resisting the petition of the plaintiff.

Evidence was introduced on the trial of the action. The evidence in behalf of the plaintiff tended to prove the allegation of his petition. The defendant introduced evidence which tended to prove that the plaintiff, about a week previous to the trial of the action in which the judgment was rendered against him, in conversation with one of the parties to that action, stated that he knew that the case was coming on for trial on the day for which it was set and that he would be present. There was, therefore, contradictory evidence concerning the plaintiff’s knowledge of the time of trial. The court in an opinion stated that “I can’t find as a matter of fact that there is such unavoidable casualty or misfortune as prevented the defendant in the case of Reser v. Pease from properly defending his action.” Whether or not the plaintiff by unavoidable casualty was prevented from defending was a question of fact to be determined from the evidence. That question was determined against the plaintiff on evidence which supported the finding of the court. That finding is therefore conclusive at this time.

The judgment is affirmed.