Scott v. Morning

18 Kan. 489 | Kan. | 1877

The opinion of the court was delivered by

F’Valentine, J.:

In this action, Samuel Morning was the plaintiff below, and A. J. Scott and several others were the defendants. Judgment was rendered in favor of the plaintiff below and against all the defendants; but as Scott is the only person who is now complaining of such judgment, it will be necessary only to consider whether the judgment rendered against him was correct, or not.

The plaintiff set forth in his petition that three of said defendants (other than Scott) executed to him a certain promissory note; that one of said three, and another defendant (other than Scott) executed to him a.real-estate mortgage to secure said note; and that’Scott claimed to have some interest in the mortgaged property, but that whatever interest he might have therein was junior and inferior to plaintiffls mortgage-lien. Scott answered to this petition, setting forth in his auswer, in detail, that he was thé absolute and exclusive owner of said mortgaged property, showing how he became the owner thereof; that the said mortgagors never had any any interest in the mortgaged property, and therefore that the mortgage was void as against him. There was no reply filed by the plaintiff to this answer. At least no such reply is found in the record. The record ¡tends to show that no such reply was filed; and the clerk of the court below certifies at the bottom of the record, “ that the above and foregoing is a true, full, and complete transcript of the above and foregoing cause, and the same contains all the pleadings filed and proceedings had in said cause.” Hence we must presume that no such reply was filed. The defendant T. M. Harmon also filed an “answer,” and the defendant Scott filed a reply to Harmon’s answer. These, and plaintiff’s petition, were the only pleadings in the case. Upon these pleadings the plaintiff Morning moved the court for judgment, and the motion was sustained, and judgment was rendered in favor of the plaintiff and against all of the defendants. The judgment was a personal money-judgment as against the said three defendants who executed said promissory note, and a judgment that the mortgaged property be sold, etc., as against all the defendants. This judgment was probably correct as against all the defendants except Scott. As against him, the judgment was erroneous. He was not in default, and no judgment could properly have been rendered against him on the pleadings. Upon the pleadings, the judgment should have been rendered in his favor.

The judgment of the court below as against the defendant Scott will be reversed, and cause remanded for further proceedings.

All the Justices concurring.